Freivogel on Conflicts
This and That - Part II

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This & That - Part I
This & That - Part III

This and That is now three pages, Part I, Part II, and Part III.  The contents of these pages are as follows:

Part I - (click here)

 - Attorney-Client Privilege/Work Product
 - Confidentiality - Duty under Ethics Rules

Part II (this page)

 - Communicating with Represented Party - Rule 4.2
 - Conflicts - Uncategorized

Part III (click here)

 - Liability - not Conflicts-Related
 - Temporary Lawyers
 - UPL
 - Other

Communicating with Represented Party - Rule 4.2

Permissible to contact in-house lawyer.  ABA Op. 06-443 (Aug. 5, 2006); D.C. Bar Ass’n, Ethics Op. 331 (2005); N.Y. City Op 2007-1 (undated); In re Grievance Proceeding, 2002 WL 31106389 (D. Conn. July 19, 2002); Restatement § 100 cmt. c; Utah Op. 15-2 (2015) (but, with caution); In Re Grievance Proceeding, No. 3:01GP6 (SRU), 18 Law. Man. Prof. Conduct 615 (D. Conn., July 19, 2002); In re Woodham, 2015 BL 39641, No. S14Y0700, 31 Law. Man. Prof. Conduct 905 (Ga. 2015).

ABA Op. 502 (Sept. 28, 2022). This opinion holds that lawyers representing themselves are subject to the same Rule 4.2 restrictions that apply to lawyers representing clients. Two members dissented. Lots of research material on Rule 4.2.

ABA Op. 11-461 (Aug. 4, 2011).  In this opinion the Committee affirmed the right of a lawyer to advise a client regarding the client's communication with the other party.  The opinion further says that the lawyer may prepare a written agreement to be signed by the other side, which the client would present to the other side.  The opinion has drawn thoughtful comment, some of it negative.  Stay tuned.

Board of Prof. Respons. v. Melchior, 2012 Wyo. LEXIS 4 (Wyo. Jan. 6, 2012).  Recall the controversial ABA Op. 11-461 (2011) (just above) where the committee expanded what a lawyer could do to prepare a client to meet with the other side, who was represented.  This included preparing an agreement to take to the other party.  This disciplinary case involved similar conduct.  The only difference was the offending lawyer had told the other lawyer he would not file the agreement.  Then, he did.  The lawyer admitted to violating Rule 4.2 and agreed to a public reprimand.  This opinion does not mention the ABA opinion.

Contacting in-house lawyer grounds for revocation of pro hac vice status.  Logan v. Cooper Tire & Rubber Co., 2011 U.S. Dist. LEXIS 88622 (E.D. Ky. Aug. 9, 2011).

Court construes "matters outside the representation" exception in Comment [4] to Rule 4.2.  Crum v. State of Alabama, 2006 U.S. Dist. LEXIS 72161 (M.D. Ala. Oct. 2, 2006)

Comprehensive opinions on what types of employees may and may not be interviewed without the employer's lawyer's permission.  Snider v. Superior Court, 7 Cal. Rptr. 3d 119 (Cal. App. 2003); Palmer v. Pioneer Inn Associates, Ltd., 59 P.3d 1237 (Nev. 2002).

Massachusetts high court adopts majority view as to contacts with current and former employees of the other side.  Patriarca v. Center for Living & Working, Inc., 778 N.E.2d 877 (Mass. 2002).

World Healthcare Systems, Inc. v. SSI Surgical Services, Inc., Healthcare Systems, Inc. v. SSI Surgical Services, Inc., 2011 U.S. Dist. LEXIS 61208 (E.D. Tenn. June 7, 2011).  In response to Defendant's motion for summary judgment, the lawyer for Plaintiff ("lawyer") filed an affidavit of Defendant's former CEO.  The CEO had signed a confidentiality agreement while with Defendant, but Lawyer did not know that.  Defendant moved to strike the affidavit and disqualify Lawyer.  In this opinion the court ordered certain parts of the affidavit stricken because they contained matter that either violated the confidentiality agreement, were privileged, or were subject to work product.  The court did not disqualify Lawyer.  [Note: we have long wondered whether a lawyer who is interviewing a current or former employee of the other side should ask, as a matter of routine, whether the employee had a confidentiality agreement with the employer.  We have also wondered what the effect on all this should be of the confidentiality provisions in Section 8.05 of the Restatement of the Law of Agency.]

Adopts majority rule on contacting former supervisory employees.  Clemons v. City of Detroit, 2010 U.S. Dist. LEXIS 50824 (E.D. Mich. May 24, 2020).

Ohio opinion follows Comment to Model Rule 4.2 on dealing with corporate employees.  Ohio Op. 2005-3 (Feb. 4, 2005).

Improper to claim blanket representation of all an organization's constituents.  Col. Op. 120 (2008); Ohio Op. 2005-3 (Feb. 4, 2005); Utah Op. 04-06 (Dec. 2, 2004); McCargo v. Texas Roadhouse, Inc., 2011 U.S. Dist. LEXIS 4314 (D. Col. Jan. 12, 2011); Rivera v. Lutheran Med. Center, 2008 N.Y. Misc. LEXIS 6060 (N.Y. Misc. Oct. 16, 2008).  And, in Koo v. Rubio's Restaurants, Inc., 135 Cal. Rptr. 2d 415 (Cal. App. 2003), restaurant chain managers brought class action against employer relating to overtime.  When the plaintiffs' counsel tried to discover the identities of all the managers, the employer's law firm responded that it represented not only the employer, but also all the managers.  It almost backfired when the plaintiffs' counsel moved to disqualify employer's counsel.

Contact with in-house lawyer, but no resolution of in-house issue.  Tylena M. v. Heartshare Human Services, 2004 U.S. Dist. LEXIS 10398 (S.D.N.Y. June 7, 2004).

Discusses nuances of client contacting other party versus the lawyer; lawyer attempt to do something through client that he could not do himself. In re Anonymous, 819 N.E.2d 376 (Ind. Dec. 23, 2004); and In re Pyle, 91 P.3d 1222 (Kan. 2004).

Lawyer not disqualified where contact was initiated by sophisticated opponent.   Pioneer Resources Corp. v. Nami Resources Co., LLC, 2006 U.S. Dist. LEXIS 32484 (E.D. Ky. May 22, 2006).

OK to talk to other side's lawyer - even former lawyer.  Ferguson v. Southern Highlands Golf Club, LLC, 2006 U.S. Dist. LEXIS 68002 (D. Nev. Sept. 21, 2006).

New Jersey's unique version of Rule 4.2: "litigation control group."  In re PMD Enterprises, Inc., 215 F. Supp. 2d 519 (D.N.J. 2002).  New Jersey’s version of Model Rule 4.2 is unique in that it protects from ex parte contact members of a party’s “litigation control group.”  In this case the court revoked a lawyer’s pro hac vice admission because he had caused his investigator to attempt to hire as an expert a former employee of the other side, who had been designated a member of the company’s “litigation control group.”  (The offending lawyer’s situation was not helped by the fact that his conduct had been criticized in many court opinions.)

N.Y. City Bar Op. 2002-3 takes modern view on advising client on communications with the other side.

OrganizationsWisconsin in line with majority.  Wis. Op. E-07-01 (Eff. July 1, 2007).

Lawyer for patient may communicate with treating doctor who is employee of defendant hospital.  Lee Memorial Health System v. Smith, 2011 Fla. App. LEXIS 575 (Fla. App. Jan. 28, 2011).

P.T. Barnum's Nightclub v. Duhamell, 766 N.E.2d 729 (Ind. App. April 23, 2002).  The court held that Rule 4.2 does not prohibit contact with former employees of an opponent.  The court went on to state that while Rule 4.4 prohibits the lawyer from inducing a violation of the attorney-client privilege, neither Rule 4.2 nor Rule 4.4 apply to situations where the former employee gives privileged information to the lawyer if the communication is "inadvertent or unsolicited."

Illinois opinion says Rule 4.2 applies to non-litigation situations.  Ill. Op. 04-02 (April 2005).

Lawyer against city discusses case with city council members at open meeting of council; no disqualification.  Jackson v. City of San Antonio, 2003 U.S. Dist. LEXIS 23350 (W.D. Tex. Dec. 22, 2003).

Massachusetts adopts majority rule on contact with former employees.  Clark v. Beverly Health and Rehabilitation Services, Inc., 797 N.E.2d 905 (Mass. 2003).

General Counsel asked employee for information about alleged misconduct by other employees.  When he refused, the employee was fired.  The General Counsel knew the employee had a lawyer, but the court held that the lawyer represented the employee on a matter not related to the misconduct of other employees.  Thus, the General Counsel did not violate California's version of Rule 4.2.  Burrahm v. IMPCO Technologies, Inc., 2002 Cal. App. Unpub. LEXIS 4682 (Cal. App. Jan. 22, 2002).

Lawyer disciplined for writing letter to other side complaining about other side's lawyer's conflict.  In re Baker, 758 N.E.2d 56 (Ind. 2001).

Lawyer could contact director of opponent corporation, even though counsel for the corporation objects, if director's personal lawyer consents.  La Jolla Cove Motel & Hotel Apts., Inc. v. Superior Court, 17 Cal. Rptr. 3d 467 (Cal. App. 2004).

Lawyer representing self not exempt from Rule 4.2.  In re Haley, 126 P.3d 1262 (Wash. 2006).  First impression in Washington.  Court cited several decisions from other jurisdictions.  That was also the conclusion in In re Lucas, 2010 N.D. LEXIS 190 (N.D. Sept. 29, 2010), and Hawaii Op. 44 (2003).

Use of lying investigator with hidden recording device to interview adversary's employees causes violation of Rules 4.2 and 8.4(c) and exclusion of evidence.  Midwest Motor Sports d/b/a Elliott Power Sports, Inc. v. Arctic Cat Sales, Inc., 347 F.3d 693 (8th Cir. 2003).  But, in In re Hurley, No. 2007AP478-D (Wis. Feb. 11, 2009), a discipline case, the court found that such conduct by a criminal defense lawyer did not violate a rule.

Lawyer for a party in marriage dissolution should have confirmed that the other party was no longer represented.  In re Capper, 757 N.E.2d 138 (Ind. 2001).

Other side's corporate secretary off limits.  Featherstone v. Schaerrer, 34 P.3d 194 (Utah 2001).

Lawyer suing railroad for crossing accident not disqualified even though he represents the engineer of the train in question in another accident case against the railroad.  Railroad had claimed that the unrelated representation of the engineer enabled the lawyer to have ex parte communications with the engineer about this case.  Skidmore v. Gateway Western Ry. Co., 776 N.E.2d 333 (Ill. App. 2002).

Confusing decision.  Lawyer not disqualified for communicating with former managerial employee of corporate opponent who is current employee of wholly-owned subsidiary of corporate opponent.  Allstate Ins. Co. v. Bowne, 817 So. 2d 994 (Fla. App. May 29, 2002).

Lawyer violating Rule 4.2 not disqualified where subject of conversation not related to the case.  Vertical Resources, Inc.  v. Bramlett, 837 A.2d 1193 (Pa. Super. 2003).

Suing hospital while representing a nurse at the hospital on unrelated matter does not implicate Rule 4.2.  Piedmont Hospital, Inc. v. Reddick, 599 S.E.2d 20 (Ga. App. 2004).

Lawyer receiving privileged communications from his own client disqualified.  Court approves ABA Op. 94-382 (1994).  Court relies, in part, on client's NDA with the employer/defendant.  Richards v. Jain, 168 F. Supp. 2d 1195 (W.D. Wash. 2001).  The court in Arnold v. Cargill, Inc., 2004 U.S. Dist. LEXIS 19381 (D. Minn. Sept. 24, 2004) relied heavily on Jain.  Lawyer obtained privileged documents from former employee of other side.  In Arnold v. Cargill Inc., 2004 U.S. Dist. LEXIS 22796 (D. Minn. Nov. 8, 2004), the same court allowed the disqualified law firm to share certain information with the client's prospective new lawyer.  But, in Arnold v. Cargill, Inc., 2007 U.S. Dist. LEXIS 89146 (D. Minn. Dec. 4, 2007), the court denied fees to the disqualified lawyers.

Admonishing former employee not to reveal privileged information proves helpful.  Muriel Siebert & Co. v. Intuit, Inc., 868 N.E.2d 208 (N.Y. 2007) .

Explains role of privilege in Rule 4.2 situations.  Smith v. Kalamazoo Ophthalmology, 322 F. Supp. 2d 883 (W.D. Mich. 2004).

What disqualified lawyer can share with prospective new lawyer.  Arnold v. Cargill Inc., D. Minn., Civ. No. 01-2086 (DWF/AJB), 11/23/04.

Plaintiff's lawyer may talk to adjuster for casualty insurance company insuring the defendant.  N.Y. Op. 785 (Feb. 1, 2005).

District court holds that Maine follows majority rule on contacts with former employees.  Frank v. L.L. Bean Inc., 377 F. Supp. 2d 233 (D. Me. 2005).

Contacting in-house lawyer.  D.C. Bar Op. 331 (Oct. 2005).  The committee held that a lawyer may contact the in-house lawyer of an organizational opponent even though the opponent has outside counsel.

“You ain’t got no stinking lawyers.”  (Borrowing from The Treasure of the Sierra Madre.)   Best Deals on TV, Inc. v. Naveed, 2007 U.S. Dist. LEXIS 43762 (N.D. Cal. June 11, 2007).  This is a suit by an employer against former employees alleging RICO violations, fraud, and related causes of action.  “Approximately ten minutes” after serving the defendants with the complaint, summons, and a motion for TRO, lawyers for the plaintiff began interrogating the defendants about the case.  One of the defendants objected saying that the defendants should be able to talk to their own lawyers.  (It was pretty clear from the motion papers that they had not yet hired lawyers.)  The plaintiff’s lawyers persisted in the interrogation.  The defendants moved to disqualify the plaintiff’s lawyers for violating California’s version of Model Rule 4.2 (Cal. Rule 2-100(A)).  The court denied the motion in this opinion.  The court enforced the literal language of the rule, “represented by another lawyer.”  Because the defendants were not “represented” at the time of the interrogation, the interrogation was proper.

Contact with administrative assistant of high-ranking officer not a violation of Rule 4.2.  EEOC v. Hora, Inc., 2007 U.S. App. LEXIS 15705 (3d Cir. June 29, 2007).

Class actions; permissive opinion on contacting class members.  ABA Op. 07-445 (April 11, 2007).

Violating duty of confidentiality can be cause of action.   Elkind v. Bennett, 958 So. 2d 1088 (Fla. App. 2007).

Wisconsin adopts majority view of contacting agents of represented organizations.  Wis. Op. E-07-01 (July 1, 2007).

OK to talk to other side's treating doctor, but must comply with HIPAA.  Arons v. Jutkowitz, Nos. 147, 148, & 153 (N.Y. Nov. 27, 2007).

Purchasing opposing party's product and discussing it with technician supervising installation gets law firm in hot water.  Microsoft Corp. v. Alcatel Bus. Systems, 2007 U.S. Dist. LEXIS 93048 (D. Del. Dec. 19, 2007).

The fact that employee's statements may be evidentiary admissions by employer does not make employee "untouchable" (our word) by other side's lawyers.  Mendez v. Hovensa, L.L.C., 2008 U.S. Dist. LEXIS 28122 (D.V.I. March 31, 2008).

Where Party is Pro Se, OK to Talk to Her.  McMillan v. Shadow Ridge at Oak Park Homeowner’s Ass’n, 2008 Cal. App. LEXIS 1191 (Cal. App. Aug. 4, 2008).

Lawyer's alleged violation of California's version of Rule 4.2 does not invalidate settlement.  Myerchin v. Family Benefits, Inc., 76 Cal. Rptr. 3d 816 (Cal. App. 2008).

Party assigned CFO, rather than paralegal or assistant, to attend document production; placed hidden video camera to record document review; motion denied.  Data Capture Solutions-Repair & Mktg., Inc. v. Symbol Technologies, Inc., 2008 U.S. Dist. LEXIS 83595 (D. Conn. Oct. 17, 2008).

Speaking to non-supervisory employee of other side not a violation.  Knox v. Dynamic Nursing Services, 2009 Cal. App. Unpub. LEXIS 1029 (Cal. App. Feb. 6, 2009).

Not OK to write to the other party and other party’s lawyer at same time.  N.Y. City Op. 2009-1 (undated).

Court did not disqualify lawyer, but referred 4.2 violation to disciplinary authorities.  American Plastic Equip., Inc. v. Toytrackerz, LLC, 2009 U.S. Dist. LEXIS 27790 (D. Kan. Mr. 31, 2009).

Griffin-El v. Beard, 2009 U.S. Dist. LEXIS 81028 (E.D. Pa. Sept. 8, 2009).  Lawyers in one case may contact an opponent about matters in another case, in which the opponent is not a party and is not represented.

Philadelphia Op. 2009-2 (March 2009).  Lawyer may not, under Rule 8.4(c), cause another person to ingratiate that person into adversary's Myspace or Facebook account.

Fuhr v. School Dist. of City of Hazel Park, 2009 U.S. Dist. LEXIS 106740 (E.D. Mich. Nov. 16, 2009).  Individual plaintiff hired investigators to interview officers of other side.  Court found violation of 4.2 and ordered information gathered not to be used -- did not disqualify plaintiff’s lawyer.

Matusick v. Erie County Water Authority, 2010 U.S. Dist. LEXIS 15161 (W.D.N.Y. Feb. 22, 2010).  Employer’s lawyer barred from instructing “non-party, non-policymaking” employees from talking to the plaintiff’s lawyer.

Rebel Communications, LLC v. Virgin Valley Water Dist., 2011 U.S. Dist. LEXIS 21489 (D. Nev. Feb. 15, 2011).  The plaintiff sued the defendant over a dispute regarding a lease.  The defendant moved to disqualify the plaintiff's lawyer ("Lawyer") on two grounds.  The first ground was that Lawyer discussed this case with the defendant's former general counsel after he was no longer general counsel, allegedly in violation of Nevada Rule 4.2.  In this opinion the magistrate judge held that a former employee is not covered by Rule 4.2.  The court also held that even if the general counsel had been a current employee, there was no showing that he possessed the type of authority to make the contact a violation.  The second ground was that Lawyer represented the General Manager of the defendant in connection with his termination by the defendant.  The magistrate judge held that because there was no showing that Lawyer obtained confidential information from the General Manager about this case, Lawyer should not be disqualified.

Mori v. Saito, 2011 U.S. Dist. LEXIS 49218 (S.D.N.Y. May 9, 2011).  This is a suit by investors against defendants that the investors claimed had defrauded them.  One of the plaintiffs received a series of threatening-sounding late-night calls from someone who misrepresented who he was.  During one of the calls that plaintiff was able, using a speaker phone, to allow her lawyer to listen in.  The lawyer just listened.  The defendants moved to disqualify the plaintiff's lawyer, alleging that the caller was a plaintiff, and that the lawyer's listening in was a violation of of New York's then version of MR 4.2.  In this opinion the magistrate judge denied the motion to disqualify.

CSX Transp., Inc. v. Gilkison, 2011 U.S. Dist. LEXIS 130118 (N.D. W. Va. Nov. 9, 2011).  Law Firm represented a number of plaintiffs against Railroad in asbestos cases.  In this case Railroad is suing Law Firm for fraud arising out of the asbestos cases.  In this opinion the court ruled that West Virginia's version of MR Rule 4.2 does not prohibit Railroad's lawyers from contacting Law Firm's former clients, but does prohibit Railroad from contacting Law Firm's current clients.  The court also ruled that Law Firm could not represent former clients when they are deposed in this case because of the material-limitation provision of West Virginia's version of MR 1.7(a)(2).

Dixon-Gales v. Brooklyn Hosp. Center, 2012 N.Y. Misc. LEXIS 1088 (N.Y. Sup. Ct. March 7, 2012).  Medical malpractice case against Hospital and others.  Plaintiff's investigator interviewed one of the nurses on duty at the time of the alleged malpractice.  Defendants objected.  In this opinion the court held that the nurse was among those not to be interviewed, pursuant to then N.Y. DR 7-104(a)(1), predecessor to N.Y. Rule 4.2.

Engstrom v. Goodman, 2012 Wash. App. LEXIS 439 (Wash. App. March 5, 2012).  Lawyer received an E-mail from the client on the other side of a case saying she no longer wanted her lawyer.  Lawyer responded to the client and had her sign a declaration.  In this opinion the appellate court upheld a $3,000 sanction against lawyer for violating Washington's version of MR 4.2.  The court said Lawyer should either have forwarded the E-mail to the other lawyer or called it to the attention of the court.

Tomasian v. C.D. Peacock, Inc., 2012 U.S. Dist. LEXIS 91795 (N.D. Ill. July 3, 2012).  Employment discrimination case.  Both the plaintiff and the defendant's HR Manager ("Manager") left the defendant at about the same time in 2008.  After Manager left, the plaintiff's lawyer ("Lawyer") met with Manager and briefly represented her in connection with her deposition.  Claiming a violation of Rule 4.2, the defendant moved to disqualify Lawyer.  In this opinion the magistrate judge denied the motion because the defendant had not shown that Lawyer had extracted from Manager confidential or privileged information belonging to the defendant.

Kuziel v. Kuziel, 2013 Ill. App. Unpub. LEXIS 689 (Ill. App. March 29, 2013).  Client discussed case with lawyer preliminarily.  Lawyer then spoke with opponent, knowing opponent was represented.  Client then retained lawyer formally.  Court disqualified lawyer for violating Rule 4.2.

Hornsby v. Tarrant Co. Coll. Dist., 2013 Tex. App. LEXIS 6107 (Tex. App. May 16, 2013).  Employee sued Employer for failing to promote Employee.  Lawyer, representing Employee, communicated with other employees of Employer, one of whom had her own lawyer.  The other contacted employees had supervisory responsibilities regarding Employee's claim.  Because of the contacts the trial judge disqualified Lawyer.  In this opinion the appellate court affirmed.

Rules 4.2 & 4.3 (posted January 13, 2014) EEOC v. SVT, LLC, 2014 U.S. Dist. LEXIS 2391 (N.D. Ind. Jan. 8, 2014).  This is a suit by the EEOC against a food supplier for sex discrimination in hiring.  Both parties raised issues under both Ind. Rules 4.2 and 4.3 regarding who could talk to class members and who could talk to company employees.  Because the magistrate judge’s opinion was so fact-intensive, and of questionable precedential value, we will not provide any detail here.  The court discusses many cases on these issues.  Suffice it to say, anyone with similar issues, particularly in class actions, might find the opinion informative.

Doe v. Superior Court, 2019 WL 2480029 (Cal. App. June 13, 2019). This is a suit for sexual harassment and sexual assault against College and several employees. One of Plaintiff's lawyers ("Lawyer") contacted a female employee (not a party) of College about her experience in an alleged similar matter. Defendants moved to disqualify Lawyer for violating California Rule 4.2. California has seemingly codified Comment [7] of ABA Rule 4.2 as California Rule 4.2(b)(2). The trial court granted the motion. In this opinion the appellate court reversed (granted mandamus). The court held that the interviewed employee was not in a position to bind College or impute liability to College as required by Rule 4.2(b)(2).

Riley v. PK Mgmt., LLC, 2019 WL 4256367 (D. Kan. Sept. 9, 2019). In this case Tenants, represented by Lawyer Bell, are suing Defendants over the allegedly bad condition of their apartments. Defendant Aspen is the property manager. Keiri Broadus was the "Social Services Coordinator" of Aspen. Broadus telephoned Bell's firm about Law Firm representing her, arising out of conduct relating to this case. Bell's firm informed Broadus that it could not represent her and referred her to Lawyer Dandurand, whom Broadus hired. At some point Bell had a meeting with Broadus and Dandurand. Primarily because of that meeting, Aspen moved to disqualify Bell for violating Rule 4.2. In this opinion the magistrate judge denied the motion. One issue was whether Broadus had the kinds of supervisory responsibility at Aspen that would render her "off limits" (our term) under Rule 4.2. In a detailed factual analysis the court concluded that Bell did not know Broadus was in that category. The court also adopted the view, expressed in two non-Kansas court opinions, that where the constituent is separately represented, and his or her personal lawyer consents to the meeting, the meeting does not violate Rule 4.2.

ABA Op. 472 (Nov. 30, 2015). This may be dangerously over-simplified, but here goes: If a Lawyer A wants to communicate with a third-party, Lawyer A need not ask if the person is represented. If Lawyer A suspects that another lawyer (“Lawyer B”) is involved, then Lawyer A should investigate, usually by asking the third party whether he or she has worked with a lawyer. (The opinion expands upon who should ask whom about what. Read it.) If Lawyer A discovers that the other representation is of “limited scope” under Rule 1.2(c), then Lawyer A can speak to the third party about some things without Lawyer B’s permission, but not others. Again, the opinion expands that distinction.

Riley v. PK Mgmt., LLC, 2019 WL 4256367 (D. Kan. Sept. 9, 2019). In this case Tenants, represented by Lawyer Bell, are suing Defendants over the allegedly bad condition of their apartments. Defendant Aspen is the property manager. Keiri Broadus was the "Social Services Coordinator" of Aspen. Broadus telephoned Bell's firm about Bell's firm representing her, arising out of conduct relating to this case. Bell's firm informed Broadus that it could not represent her and referred her to Lawyer Dandurand, whom Broadus hired. At some point Bell had a meeting with Broadus and Dandurand. Primarily because of that meeting, Aspen moved to disqualify Bell for violating Rule 4.2. In this opinion the magistrate judge denied the motion. One issue was whether Broadus had the kinds of supervisory responsibility at Aspen that would render her "off limits" (our term) under Rule 4.2. In a detailed factual analysis the court concluded that Bell did not know Broadus was in that category. The court also adopted the view, expressed in two non-Kansas court opinions, that where the constituent is separately represented, and his or her personal lawyer consents to the meeting, the meeting does not violate Rule 4.2.

Hernandez v. Helm, 2019 WL 5922233 (N.D. Ill. Nov. 12, 2019).  Two city workers sued City and two City managers in this whistle-blower matter. The plaintiffs moved to disqualify City's lawyer. First, the plaintiffs claimed City's lawyer violated Model Rule 4.2. The plaintiffs cite three instances where fellow workers attempted to get them to drop the suit. Because there was no showing that City's lawyer had anything to do with those attempts, the magistrate judge rejected the Rule 4.2 argument.

Communication with Guardian ad Litem. Estate of Elkins v. Pelayo, 2020 WL 977931 (E.D. Cal. Feb. 28, 2020). Decedent "was shot and killed by law enforcement." This is apparently a suit by Decedent's children and others against Defendant. The court appointed a guardian ad litem for the children. Defendant's lawyer ("Lawyer") had a conversation with the GAL without the permission of the children's lawyer. The plaintiffs moved to disqualify Lawyer for violating California's version of MR 4.2. In this opinion the magistrate judge found that Lawyer's contact with the GAL did violate Rule 4.2. However, because it appeared that Lawyer did not learn anything in the GAL contact that disadvantaged the children, disqualification was not warranted. The magistrate judge also discussed whether Lawyer had a conflict of interest. We do not understand what the judge was driving at, but, in any event, it did not result in Lawyer being disqualified.

In Class Action Context. Cortina v. North Am. Title Co., No. F077659 (Cal. App. June 18, 2020). In this class action, after one of the classes had been decertified, Morgan, Lewis lawyers, representing the defendant, interviewed four members of that class. The plaintiffs moved to disqualify Morgan, Lewis for violating California Rule 2-100 (predecessor to current rule 4.2). The trial court granted the motion. In this opinion the appellate court reversed. The court did not get to the issue of whether the four class members were represented. The gist of the decision was that the plaintiffs had not been prejudiced.

Covey v. Colonial Pipeline Co., No. 2:18-CV-01121-RDP (and 2 other consolidated cases) (N.D. Ala. Feb. 24, 2021). These are three consolidated injury cases arising out of an explosion at a pipeline work site. Lawyer Cochran represents a plaintiff in one of these cases. L.E. Bell Co. is a defendant in one or more of these cases but not in the case brought by Cochran. Cochran and Bell are adverse in a state court worker's compensation case ("WC case") brought by Cochran arising out of the same explosion. Cochran hired Expert to assist in the WC case and paid Expert "a $5000 retainer." The problem is that Expert is a former employee of Bell who had been consulting with Bell regarding the explosion. When Bell learned of Expert's retention, Bell moved to disqualify Cochran in all the cases arising out of the explosion. In this opinion the court declined to disqualify Cochran but said she would be subject to sanctions. We will give you the bottom line rulings; for the court's reasoning, you will have to read the opinion. The court found the $5,000 retainer did not violate Rule 3.4(b). The court found that Bell failed to show that Cochran received Bell's privileged information, thus not violating Rule 4.4(a). However, the court held that Cochran did violate Rules 4.4(a) & 4.4(b) by receiving Bell's lawyers' work product and not notifying Bell. The court held that Cochran fell short of complying with Rule 5.3(b) in not ensuring adequately that Expert did not reveal Bell's privileged information to Cochran. But, the court said that "any prejudice incurred to Bell by the disclosures is minimal." Thus, no disqualification. Presumably, we will learn about the sanctions against Cochran in "a separate order."

Allstate Ins. Co. v. Inscribed PLLC, 2021 WL 5287283 (E.D. Mich. Nov. 15, 2021). In this opinion the magistrate judge found that (1) two of Allstate's lawyers violated Rule 4.2 by talking to an opposing party out of the presence of that party's lawyer, and (2) one of those lawyers lied about it under oath. The court disqualified the lawyers and their law firm. The court also referred the matter to disciplinary authorities. We cite the matter to show possible consequences of a Rule 4.2 violation.

Pro se Lawyer Violates Rule 4.2. In re Michael C. Steele, No. 20S-DI-474 (Ind. March 4, 2022). Lawyer A is in a dispute with a long-time friend ("Friend") (nature of friendship unclear). Friend retained Lawyer B. B instructed A not to communicate with Friend. A did, anyway. In this opinion the court affirmed a disciplinary hearing officer who found A in violation of Rule 4.2. The court rejected the argument that A was not representing a client. The court also held that the fact that one litigant was communicating directly with the other (which, in other circumstances is permitted) would not excuse a litigant who is also a lawyer. The opinion cites similar holdings from other states.

Pettis v. Simrall, 2023 WL 311342 (Miss. Jan. 19, 2023). The facts and relationships are complex and not necessary to getting the gist of this holding. Plus, a lot of the analysis relies heavily on Mississippi partnership law. We will leave it to our Mississippi friends to read and understand those aspects. Lawyer was involved in a matter adverse to a general partnership. Lawyer met with one of the partners without notifying the lawyer for the partnership. The partnership moved to disqualify Lawyer for violating Rule 4.2. The trial judge granted the motion. In this opinion the Mississippi Supreme Court reversed the trial judge. The partner involved swore that she did not retain the lawyer for the partnership to represent her individually. In brief, the court found that a lawyer for a general partnership does not, without more, represent the individual partners. Thus, Lawyer, in meeting with the partner, was not meeting with a represented person, and thus not violating Rule 4.2.

Rothstein v. Samsung Elecs. Am., Inc., No. B3224148 (Cal. App. 2d Dist. Unpub. Dec. 20, 2023). The issue here is whether the court should revoke Plaintiff's Lawyer's pro hac vice admission for violating Rule 4.2. Lawyer had contacted "an authorized service center (ASC) of defendants." The trial court ordered the admission revoked. In this unpublished opinion the appellate court reversed. The court held that regardless of whether ASCs fall within the category of a "party," or whether Lawyer violated Rule 4.2, Lawyer's conduct would not "have a substantial continuing effect on the proceedings."

Conflicts - Uncategorized

Terrific book devoted to conflicts of interest.  R. Flamm, Lawyer Disqualification: Conflicts of Interest and Other Bases (2003).  This book is excellent and comprehensive and is essentially about conflicts of interest.  Now, the 2005 Supplement is out.  It is more than 350 pages in length and cites approximately 500 cases, including cases published this year.  Both the book and the Supplement are musts for lawyers dealing with conflicts issues.  Here’s where you get them: Banks & Jordan Law Publishing Company, P.O. Box 7651, Berkeley, CA 94705, phone 510-849-0145.

Presumption of disqualification.  The Attic Tent, Inc. v. Copeland, 2006 U.S. Dist. LEXIS 57601 (W.D.N.C. Aug. 14, 2006).

Rule 11 sanctions ($8,000+) for frivolous  motion to disqualify.  Doe v. Fulton-DeKalb Hosp. Auth., 2006 U.S. Dist. LEXIS 76624 (N.D. Ga. Oct. 19, 2006).

28 U.S.C. § 1927 sanction for frivolous motion to disqualify.  De Dios v. Int'l Realty & RC Invests., 2011 U.S. App. LEXIS 7421 (9th Cir. April 11, 2011) ($12,000); Kelly v. CSE Safeguard Ins. Co., 2011 U.S. Dist. LEXIS 79776 (D. Nev. July 21, 2011) (“motion entirely reckless and frivolous”).

Inherent Authority Sanction.  Square, Inc. v. REM Holdings 3, LLC, 2012 U.S. App. LEXIS 17257 (Fed. Cir. Aug. 14, 2012).  Lawyer prosecuted Patent for Plaintiff.  Plaintiff brought this action seeking a correction of inventorship of Patent.  Lawyer appeared in this case for Defendant.  Plaintiff moved to disqualify Lawyer.  The trial court granted the motion.  Because Lawyer's defense of the motion was in "bad faith" the court, under its inherent authority, awarded Plaintiff $15,000, the amount spent by Plaintiff bringing the motion.  This opinion dealt with the appealability of the trial court's order.

Denial of motion to disqualify does not preclude disciplinary prosecution for conflictState of West Virginia v. West Virginia Office of Disc. Csl., 2013 W. Va. LEXIS 619 (W. Va. June 7, 2013). 

Lawyer as beneficiary of will he drafted.  In the Matter of the Succession of Walters, 943 So. 2d 1165 (La. App. 2006); In re Estate of Southwick, 850 N.E.2d 604 (Mass. App. 2006).

Firm cannot defend patent case if partner gave non-infringement opinion.  Crossroads Systems (Texas), Inc. v. Dot Hill Systems Corp., 2006 U.S. Dist. LEXIS 36181 (W.D. Tex. May 31, 2006).  In Celerity, Inc. Ultra Clean Holding, Inc., 476 F. Supp. 2d 1159 (N.D. Cal. 2007) , the court did not hold the firm could not defend the case but found broad waiver.

Patent cases.  Breckenridge Pharm., Inc. v. Metabolite Labs., Inc., 2007 U.S. Dist. LEXIS 7775 (S.D. Fla. Feb. 2, 2007); and  Landmark Graphics Corp. v. Seismic Micro Tech., Inc., 2007 U.S. Dist. LEXIS 6897 (S.D. Tex. Jan. 31, 2007).  Law firms litigating over patents they had prosecuted.  The courts did not treat them as "underlying work" problems, but rather as lawyer-as-witness problems.

Disagreement with client over strategy can be conflict of interest.  Heck-Johnson v. First UNUM Life Ins. Co., 2006 U.S. Dist. LEXIS 26265 (N.D.N.Y. May 4, 2006).

Party cannot sue other party's lawyer for negligence because to do so would create a conflict for the lawyer with her client.  CSX Transportation, Inc. v. Gilkison, 2007 U.S. Dist. LEXIS 18875 (N.D. W. Va. March 16, 2007).

New York City Bar opinion tackles use of one client’s confidences for another client.  ABCNY Op. 2005-2 (March 2005).

Gifts from clients.  N.H. Op. 2011-12/7 (April 2012).  This opinion discusses the various types of gifts or bequests from client to lawyer that may fall within the proscriptions of Rule 1.8(c).  It also discusses various types of family relationships that could render the gift permissible.

Violation of ethics rule creates rebuttable presumption of malpractice.  Azzar v. Tolley, 2004 Mich. App. LEXIS 2979 (Mich. App. Nov. 2, 2004).

Lawyers for plaintiffs can negotiate a settlement for the clients and at the same time negotiate with the defendants for their fees.  Ayers v. Thompson, 358 F.3d 356 (5th Cir. 2004).

"Clear sailing" agreements.  Stokes v. Saga Int’l. Holidays, Ltd., 376 F. Supp. 2d 86 (D. Mass. 2005).

"Potential Conflicts" in California.  Glahn & Hirschfield v. Taylor, 2004 Cal. App. Unpub. LEXIS 3249 (Cal. App. April 7, 2004).

Conflict must cause "actual prejudice" to justify disqualification.  Smith v. Coleman, 2004 Mich. App. LEXIS 1730 (Mich. App. June 24, 2004).

Wife's lawyer in same firm as husband's sister-in-law; not enough to invalidate pre-nuptial agreement.  Friezo v. Friezo, 914 A.2d 533 (Conn. 2007) .

Lawyer for grantee of power of attorney not necessarily lawyer for grantor.  Cole v. Biddle (Estate of Keatinge), 316 F.3d 7 (1st Cir. 2002).

Lawyer for "partition referee" not necessarily lawyer for owners.  Sullivan v. Dorsa, 128 Cal. App. 4th 947 (Cal. App. 2005).

Rare case addressing who has authority to waive conflict for corporation.  Knudstrup v. Superior Court, 2004 Cal. App. Unpub. LEXIS 2522 (Cal. App. March 19, 2004).

Role of ethics violation in malpractice litigation.  Mainor v. Nault, 101 P.3d 308 (Nev. 2004).

Lawyer Serving as a Fiduciary for an Estate or Trust.  ABA Op. 02-426 (2002).

Transfer of files from disqualified lawyer to client's new lawyer: helpful article.  Elizabeth Cohen, Hand It Over, 90 A.B.A.J. 28 (February 2004).  Discusses In re George, 28 S.W.3d 511 (Tex. 2000).

Serious conflict of interest would justify granting relief from a judgment under FRCP 60(b)(6).  Ames v. Miller, 184 F. Supp. 2d 566 (N.D. Tex. 2002); Owens v. Mukendi, 858 N.E.2d 734 (Mass. 2006) (but court denied motion because affected party waited 3 1/2 years); Murphy v. Snyder, 2013 U.S. Dist. LEXIS 32997 (E.D.N.Y. March 8, 2013) (conflict partial basis for relief).  However, in Moskowitz v. Coscette, 2002 U.S. App. LEXIS 23797 (2d Cir. Nov. 15, 2002), the court held that to warrant relief the conflict must cause serious harm to the affected party – not so here. Similar result: Cars of Shelbyville, Inc. v. First 1 Fin. Corp., 2015 WL 6556217 (E.D. Ky. Oct. 29, 2015).

Conflict Partial Basis for Vacating Default under Rule 60(b)(6).  Church & Dwight Co., Inc. v. Kaloti Enterprises of Mich., L.L.C., 2011 U.S. Dist. LEXIS 110955 (E.D.N.Y. Sept. 28, 2011).  This opinion is an order vacating a default judgment under Rule 60(b)(6) of the FRCP.  One of the factors that the court noted in supporting his decision was that the defaulted party's lawyer had a "blatant conflict of interest." Very similar case that cites Church & Dwight, Stanley v. CUNY, No. 18-cv-4844 (AJN) (S.D.N.Y. Nov. 19, 2020).

Rule 60(b)(6). Martin v. SGT, Inc., 2023 WL 3585326 (D. Utah May 22, 2023). This opinion deals largely with Plaintiff's over-the-top serious discovery violations (forgeries, etc.) and a resulting judgment against her. It also deals with Plaintiff's claim that her prior law firm had a conflict of interest because of the law firm's fee-shifting exposure to sanctions under Rule 37(b)(2)(C). The court held that the conflict here does not rise to the level of grounds for relief from the judgment against Plaintiff under Rule 60(b)(6).

Travelers Cas. & Surety Co. of Am. v. J.O.A. Constr. Co., Inc., 2012 U.S. App. LEXIS 9126 (6th Cir. May 2, 2012).  Party sought post-judgment relief under FRCP 60(b)(3)&(6) on the basis that Party's lawyer had a conflict leading up to the judgment.  The alleged conflict was that the lawyer represented both Party and an interested insurance company.  The court found that Party's and insurance company's interests aligned during that representation and that the alleged conflict was not grounds for post-judgment relief.

Malpractice cause of action not assignable because of conflict of interest.  Kommavongsa v. Haskell, 67 P.3d 1068 (Wash. 2003).

Arbitration conflict - law firm, not the arbitrator, disqualified.  Shomron v. Fuks, 730 N.Y.S.2d 90 (N.Y. App. 2001).

“Partial” arbitrator may in later later litigation represent the party appointing him in the arbitration.  Feinberg v. Katz, 2003 U.S. Dist. LEXIS 1677 (Feb. 5, 2003).

Defense lawyer being prosecuted by same office; also good survey of conflicts in criminal matters.  Campbell v. Rice, 265 F.3d 878 (9th Cir. 2001).

Dismissal of claim not appropriate remedy for lawyer's conflict of interest.   Corbello v. Iowa Production Co., 787 So. 2d 596 (La. App. 2001).

Agent for service of process.  Serving as an agent for service of process could create conflicts problems.  Springtree Country Club Plaza, Ltd. v. Blaut, 642 So. 2d 27 (Fla. App. 1994).

Lawyer may ask client to indemnify lawyer for claims by third parties, Ore. Op. 2001-165 (June 2001).

Sex with client as conflict.  Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d 261 (5th Cir. 2001); In re Moore, 2002 Ariz. LEXIS 36 (Ariz. March 5, 2002) (inappropriate sexual comments and advances grounds for censure); In re Walker, 24 P.3d 602 (Ariz. 2001); In re Pacior, 770 N.E.2d 273 (Ind. June 17, 2002); In re Tsoutsouris, 748 N.E.2d 856 (Ind. 2001); Iowa Supreme Court v. Monroe, 2010 Iowa Sup. LEXIS 77 (Ia. July 16, 2010) (violation of Rule 1.8(j) not a per se violation of Rule 8.4(d)); In re Spiegel, No. 124,397 (Kan. March 4, 2022) (sex with a client is conflict in both Kansas and Missouri); In re Fuerst, 2014 La. LEXIS 2622 (La. Dec. 9, 2014) (no violation if sex with former client or prospective client); In re DeFrancesch, 877 So. 2d 71 (La. 2004); Attorney Grievance Comm'n of Md. v. Culver, 849 A.2d 423 (Md. 2004) (comprehensive discussion); Attorney Grievance Comm'n of Md. v. O'Leary, 2013 Md. LEXIS 455 (Md. July 10, 2013);  Disciplinary Counsel v. Detweiler, 2010 Ohio LEXIS 2676 (Ohio Oct. 21, 2010); Akron Bar Ass’n. v. Williams, 819 N.E.2d 677 (Ohio 2004); Office of Disciplinary Counsel v. Moore, 804 N.E.2d 423 (Ohio 2004); Oklahoma Bar Ass’n. v. Downes, 121 P.3d 1058 (Okla. 2005); In re Mayer, 2012 S.C. LEXIS 32 (S.C. Feb. 15, 2012); In re Vogel, 2016 WL 447530 (Tenn. Feb. 4, 2016); Regular v. Law Soc. of Newf. and Lab., 2010 NLTD 90 (CanLII) (S. Ct. Newf. & Lab. May 13, 2010); and Tanya E. Stern, Conflict of Interest?: The Absolute Ban on Lawyer-Client Sexual Relationships Is not Absolutely Necessary, 16 Geo. J. Legal Ethics 535 (2003). How about sex with opposing counsel? ABA Op. 494 (2020).

Sex with Client’s Wife not Breach of Fiduciary Duty.  Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 2010 Miss. LEXIS 291 (Miss. June 10, 2010).  No civil liability.

Sex with Client’s Wife Does Violate Rule 1.7(a)(2).  In re Anonymous, 2010 S.C. LEXIS 318 (S.C. Sept. 13, 2010).  Disciplinary case.  Lawyer admonished.

Marital relationship not basis for conflict.  Derivi Construction & Architecture, Inc. v. Wong, 14 Cal. Rptr. 3d 329 (Cal. App. 2004).

No need for written fee agreement to collect fees under the California Fair Employment and Housing Act.  Flannery v. Prentice, 28 P.3d 860 (Cal. 2001).  The court held that to collect statutory lawyers fees under the Act, the lawyer need not comply with the writing requirements of California Rule 3-300, California's version of Model Rule 1.8(a).

Law firm that drafted pre-nuptial agreement for wife cannot later attack it.  Price v. Price, 733 N.Y.S.2d 420 (N.Y. App. 2001).

Lawyer acting as mediator avoided liability with carefully drawn waiver letter.  Chang’s Imports, Inc. v. Strader,  216 F. Supp. 2d 325 (S.D.N.Y. 2002).

Not a conflict for governmental lawyer to join a union.  In re City of Newark, 788 A.2d 776 (N.J. App. 2002).

Lawyer/hearing examiner cannot dismiss cases against himself and members of his family.  In re Sims, 861 A.2d 1 (D.C. App. 2004).

Fact dispute in motion to disqualify requires hearing.  AGIC, Inc. v. N. Am. Risk Servs., Inc., 2013 Fla. App. LEXIS 13463 (Fla. App. Aug. 23, 2013); The Event Firm, LLC v. Augustin, 2008 Fla. App. LEXIS 9903 (Fla. App. July 2, 2008); Minakan v. Husted, 2010 Fla. App. LEXIS 288 (Fla. App. Jan. 20, 2010) (both parties must be permitted to testify); Plaza Resorts, Inc. v. Janus American Group, Inc., 811 So. 2d 850 (Fla. App. 2002); Quality Air Conditioning Co., Inc. v. Vrastil, 895 So. 2d 1236 (Fla. App. 2005); Akrey v. Kindred Nursing Centers East, L.L.C., So. 2d 1142 (Fla. App. 2003); Solomon v. Dickison, 916 So. 2d 943 (Fla. App. 2005); Holden, P.C. v. Sezgin, No. 105047 (Okl. App. Jan. 22, 2009) (requires evidentiary hearing) Cody v. Cody, 889 A.2d 733 (Vt. 2005).

No need for evidentiary hearing. Shuttleworth v. Rankin-Shuttleworth of Ga., LLC, 2014 Ga. App. LEXIS 461 (Ga. App. July 8, 2014).

In side-switching case court should hold hearing on motion to disqualify.  Fletcher v. Greater Cleveland Reg. Transit Auth., 2007 Ohio App. LEXIS 4698 (Ohio App. Oct. 4, 2007). But, hearing not necessarily required in non-side-switching cases, Willoughby v. Willoughby, 2014 Ohio App. LEXIS 728 (Ohio App. March 3, 2014).

Keith v. Keith, 2014 La. App. LEXIS 1290 (La. App. May 15, 2014). Plaintiff moved to disqualify Defendant’s lawyer. The trial court ordered a hearing in open court, even though the hearing would involve testimony about communications likely to be subject to the attorney-client privilege. In this opinion the appellate court remanded the case, instructing the trial court to protect the privileged communications through a series of devices, such as excluding persons from parts of the hearing, receiving documents under seal, and the like.

Written disclosure and consent necessary to serve as executor.  In re Estate of Peterson, 565 S.E.2d 524 (Ga. App. 2002).

Parties in civil cases may not claim conflicts as ineffective assistance of counsel.   Harrington v. Iowa Valley Mut. Ins. Ass'n, 2002 Iowa App. LEXIS 659 (Ia. App. June 19, 2002).

Lawyer-defendant in malpractice case impleading former client's current lawyer.  Shealy v. Lunsford, 355 F. Supp. 2d 820 (M.D.N.C. 2005) (no; review of cases on all sides); Mirch v. Frank, 295 F. Supp. 2d 1180 (D. Nev. 2003) (no); Mazon v. Krafchick, 108 P.3d 139 (Wash. App. 2005) (no).

Former judicial clerk does not disqualify her law firm.  Comparato v. Schait, 848 A.2d 770 (N.J. 2004).

Conflict must cause "actual prejudice" to justify disqualification.  Smith v. Coleman, 2004 Mich. App. LEXIS 1730 (Mich. App. June 24, 2004).

Potential lawyer/witness for a party not a lawyer for that party for conflicts purposes.  Nassau County (N.Y.) Op. 2005-1 (April 6, 2005).

Court ruled on merits, then found the loser's motion to disqualify moot.  Rales v. Rales, 908 A.2d 64 (D.C. App. 2006).

Lawyer/executor cannot represent self in executor capacity.  In re Walsh, 840 N.Y.S.2d 906 (N.Y. Misc. 2007).  The court held that a lawyer who is an executor of a decedent’s estate cannot avoid the advocate-witness rule by representing himself in his capacity as fiduciary and ordered the lawyer disqualified.

Failed motion to disqualify brings sanctions under 28 U.S.C. § 1927.  Wild Game Ng, LLC v. Wong’s Int’l. (USA) Corp., 2007 U.S. Dist. LEXIS 61044 (D. Nev. Aug. 17, 2007).

California anti-SLAPP as defense to civil suit against lawyer with conflict of interest.  Not in this case.  Freeman v. Schack, 64 Cal. Rptr. 3d 867 (Cal. App. 2007).

Lawyer too zealous.  Iredale v. Stroll, 2007 QCCS 4252 (CanLII) (Quebec Super. Ct. Sept. 5, 2007).

ABA ethics committee blesses collaborative law process.  ABA Op. 07-447 (August 2007).

In copyright case where fees are recoverable the court held that the winning party can recover the fees incurred in defending a motion to disqualify its counsel.  Close-Up Int’l, Inc. v. Berov, 2007 U.S. Dist. LEXIS 83972 (E.D.N.Y. Nov. 13, 2007).

Lawyer for estate represents the personal representative, not the beneficiaries.  Bedree v. Lebamoff, 2007 U.S. Dist. LEXIS 84630 (N.D. Ind. Nov. 14, 2007).

Rule 1.11; former government lawyer in West Virginia.  State of W. Va. v. Wilkes, 2007 W. Va. LEXIS 106 (W. Va. Nov. 20, 2007).

Fee agreement invalid in part because it created a conflict with client.  Gray v. Dummitt, 2007 U.S. Dist. LEXIS 93993 (E.D.N.Y. Dec. 21, 2007).  Agreement provided that lawyer for plaintiff could unilaterally reject settlement offer if lawyer's fees inadequate.

Law firm as escrow agent.  Egnotovich v. Katten Muchin Zavis & Rosenman LLP, 2008 N.Y. Misc. LEXIS 196 (N.Y. Misc. Jan. 23, 2008).

"If you say I am screwing up, I can withdraw."  Davis & Co. v. Jiwan, 2007 BCSC 1775 (CanLII) (S. Ct. B.C. Dec. 7, 2007).

McDaniel v. Provident Life & Accid. Ins. Co., 2008 BCSC50 (CanLII) (S. Ct. B.C. Jan. 11, 2008).  McDaniel is suing Provident for health benefits.  He is also suing several individuals in another case for conspiring against his getting his health benefits.  Two of the individuals are lawyers, who are defending Provident in this case.  McClain moved to disqualify those two lawyers, and, in this opinion, the court denied the motion, finding no conflict whatsoever.

Rule 1.11 and "appearance of impropriety in New Jersey.  Brennan v. Elizabeth Bd. of Educ., 2008 U.S. Dist. LEXIS 21609 (D.N.J. March 19, 2008).

Appearance of impropriety rejected. Marcum v. Plante, 2014-SC-000172-MR (Ky. April 2, 2015).

Where client sued law firm in another case, court said law firm should withdraw in this case.  CP Solutions PTE, Ltd. v. General Elec. Co., 2008 U.S. Dist. LEXIS 25914 (D. Conn. March 26, 2008).

Court denied late jury demand because complexity of conflict of interest allegations makes case more appropriate for bench trial.  Reis v. Barley, Snyder, Senft & Cohen LLC, 2008 U.S. Dist. LEXIS 26046 (E.D. Pa. March 27, 2008).

Persisting in conflict impaired lawyer's credibility in dismissal from want of prosecution appeal.  Schafer v. City of Defiance Police Dept., 2008 U.S. App. LEXIS 13457 (6th Cir. June 26, 2008).

Lobbying in D.C.  D.C. Op. 344 (July 2008).

Employment discrimination; when does violation of legal ethics rule (here, 1.7)) constitute violation of "a clear mandate of public policy." Tartaglia v. UBS Paine Webber, Inc., 2008 N.J. LEXIS 1797 (N.J. Dec. 16, 2008).

Counseling client to hire every lawyer in town could be a violation of Texas’ version of Model Rule 4.4.  Tex. Op. 585 (Sept. 2008).

Collateral estoppel.  Ross Marine, LLC v. Query, Sautter & Gliserman, 2009 S.C. LEXIS 3 (S.C. Jan. 12, 2009).  The court held that in a civil case against a law firm for a conflict of interest, collateral estoppel would apply if a motion to disqualify the firm in the underlying case had been denied.

Res judicata.  WeCare Holdings, LLC v. Gregory, 2010 U.S. Dist. LEXIS 11070 (W.D.N.Y. Feb. 9, 2010).  Earlier state court holding that firm did not have a conflict was res judicata in federal court.

Statute of Limitations.  Stalk v. Mushkin, 2009 Nev. LEXIS 5 (Nev. Jan. 29, 2009).  The court held that, in Nevada, a breach of fiduciary claim against a lawyer is subject to the same Statute of Limitations as a claim for legal malpractice.

Doctor who filed affidavit for medical malpractice plaintiff could not appear as counsel for the plaintiff in the same case.  Fuller v. Crabtree, 2009 Tenn. App. 137 (Tenn. App. April 16, 2009).

Class actions; monitoring agreements.  Rodriguez v. Fuji Sushi, Inc., 2009 U.S. Dist. LEXIS 43487 (M.D. Fla. May 22, 2009).

Conflict can be basis for bad faith finding.  Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 2009 U.S. App. LEXIS 13209 (11th Cir. June 16, 2009).

Where party’s law firm makes an offer to the judge’s clerk, the clerk is disqualified, not the judge, Bank of N.Y. Mellon Trust Co. v. Johnson, 2009 U.S. Dist. LEXIS 54799 (N.D. Fla. June 11, 2009).

Former clerk for judge could appear before judge seven years later.  Morgal v. Maricopa Bd. of Supervisors, 2009 U.S. Dist. LEXIS 57063 (D. Ariz. June 18, 2009).

Leading Treatise in UK: Conflicts of Interest, 3rd Ed., Wildy & Sons Ltd., Lincoln's Inn Archway Carey Street, London WC2A 2JD, UK, Tel.: 020 7242 5778, Fax: 020 7430 0897;

Court slashes attorney fee sanction where four partners billed time on disqualification motion.  Grain v. Trinity Health, 2009 U.S. Dist. LEXIS 92276 (E.D. Mich. Oct. 5, 2009).

Esquire Trade & Finance, Inc. v. CBQ, Inc., 2009 U.S. Dist. LEXIS 105417 (S.D.N.Y. Nov. 5, 2009).  This case involves the obligation of an escrow agent, a lawyer, to release certain property upon satisfaction of certain conditions precedent.  One of the conditions was receipt of an opinion letter.  The court held that the opinion letter condition was not satisfied, in part because the author of the opinion was in the same law firm as the escrow agent and, therefore, had a conflict of interest.

State of Arizona v. Yuen, 2009 Cal. App. LEXIS 1813 (Cal. App. Nov. 12, 2009).  This is a proceeding by the State of Arizona to collect a judgment in California against Yuen.  The trial court found that Yuen was denied due process in Arizona and that the lawyer who represented her in Arizona had a conflict of interest.  As a result the trial court refused to enforce the judgment.  In this opinion the appellate court affirmed.

Employer May Pay Employees’ Fees if . . . .  In re Grand Jury Investigation, 2009 N.J. LEXIS 1155 (N.J. Nov. 23, 2009).

Proper for City to Retain Law Firm on Contingent Fee Basis to Collect Hotel Taxes. Inc. v. City of Anaheim, 2010 Cal. App. LEXIS 3 (Cal. App. Jan. 5, 2010).  Same for bringing public nuisance suit against lead paint manufacturers -- provided in-house lawyers retain control of key decisions, County of Santa Clara v. Superior Court, 2010 Cal. LEXIS 7241 (Cal. July 26, 2010).  Citing County of Santa Clara and reaching similar result, In re Discover Fin. Servs., Inc., 2013 W. Va LEXIS 603 (W. Va. June 4, 2013). State of New Hampshire v. Actavis Pharma, Inc., 2017 WL 2830715 (N.H. June 30, 2017), also similar; AG retained complete control.

Orange County Water Dist. v. Arnold Engineering Co., 2011 Cal. App. Unpub. LEXIS 3976 (Cal. App. May 24, 2011).  In this opinion the court held that a water district could hire a private firm to bring pollution actions on a contingency fee basis.

Echavez v. Abercrombie & Fitch Co. Inc., 2012 U.S. Dist. LEXIS 34381 (C.D. Cal. March 12, 2012).  Pursuant to the California Private Attorneys General Act, Law Firm filed this class action in conjunction with the California Labor and Workforce Development Agency.  Defendants moved to dismiss in part because Law Firm would have a conflict of interest in working for a contingent fee.  In this opinion the court denied that portion of the motion, finding that court supervision should be adequate to alleviate any conflicts problems.

Int'l Paper Co. v. Waste Mgmt., Inc., 2013 Tex. App. LEXIS 9188 (Tex. App. July 25, 2013). The court in this opinion held that a Texas county could hire a law firm on a contingent fee basis to bring an environmental suit.  The court cited, in part, the California cases so holding.

Greater Ga. Amusements, LLC v. State of Georgia, 2012 Ga. App. LEXIS 483 (Ga. App. May 25, 2012).  In this opinion the court held that a city hiring a private law firm to bring RICO forfeiture proceedings against local businesses for a contingent fee created an impermissible conflict of interest.

Reed v. Astrue, 2011 U.S. LEXIS 56542 (D. Del. May 26, 2011).  This is a claim for social security benefits.  The claimant's lawyer ("Lawyer") previously had worked for the Social Security Administration and had participated in the denial of an earlier claim brought by this claimant.  The defendant moved to disqualify Lawyer.  In this opinion the court denied the motion.  The court conceded that the claims "overlapped;" however, the court felt that allowing Lawyer to continue in this case would not frustrate the policy behind Delaware's version of MR 1.11.

Contingent Fee Does not per se Involve a Conflict of Interest. Cotchett, Pitre & McCarthy v. Universal Paragon Corp., 2010 Cal. App. LEXIS 1520 (Cal. App. Aug. 31, 2010) and Adeshina v. Litwiniuk & Co., 2010 ABQB 80 (CanLII) (Ct. Q.B. Alb. Feb. 4, 2010).

Sanford v. Commonwealth of Va., 2010 U.S. Dist. LEXIS 15708 (E.D. Va. Feb. 23, 2010).  Although lawyers disqualified, they were not sanctioned under 28 U.S.C. § 1927 or the inherent power of the court.

Morin v. Maine Educ. Ass'n, 2010 Me. LEXIS 36 (Me. April 22, 2010).  Lawyer, retained by Association, conducted an "independent" investigation of Plaintiff's allegations of gender discrimination by Association.  This included an interview by Lawyer with Plaintiff.  Plaintiff brought this action, and Lawyer's law firm appeared through other lawyers.  Plaintiff moved to disqualify the law firm.  The trial court granted the motion.  In this opinion the supreme judicial court reversed.  The evidence before the trial court conflicted as to whether Lawyer misled Plaintiff on the extent to which their interview would be confidential.  Plaintiff did not allege that she believed Lawyer represented her at the interview.  One justice filed a concurring opinion but disagreed with the majority's analysis.  Another justice dissented.

HSBC Bank USA, NA, Inc. v. MacMillan, 2010 N.H. 54 (N.H. June 3, 2010).  This appeal involved a lower-court award of quiet title to real estate.  One of the grounds of the appeal was that the winning lawyer had violated New Hampshire's version of Model Rule 1.11(c) (possessing confidential government information -- nature of information not revealed in opinion).  The court rejected that ground because the losing parties could not show how the violation prejudiced them.

Doe v. Catholic Archdiocese of Chicago, 2010 U.S. Dist. LEXIS 56157 (N.D. Ill. June 8, 2010).  This is a suit by 73 plaintiffs against Church and Church officials.  Each of the plaintiffs had earlier sued Church and Church officials for sexual abuse.  Those suits were settled.  This suit claims that, because the plaintiffs are African-American or Hispanic, the earlier proceedings and settlements as to them were handled in a discriminatory way.  The lawyer for the plaintiffs in this case ("Lawyer") settled 47 of the prior cases.  The defendants in this case moved to disqualify Lawyer.  The primary basis for the motion was that when Lawyer settled six of those cases Lawyer agreed to indemnify Church and Church officials:      

. . . from payment and satisfaction of any and all liens, claims, or causes of action related to this Agreement or any tax related liabilities or Agreement.

The magistrate judge granted the motion based upon the material limitation provision of the Northern District's version of Model Rule 1.7(a)(2).  (That's right: the Northern District of Illinois has its own rules.)  The court said that Lawyer's potential exposure under the indemnification agreement was "out of alignment" with the interests of his clients in this case.  Lawyer submitted 32 written waivers of the conflict, including waivers from the six plaintiffs connected to the indemnification agreement; however, the court held that the conflict was non-waivable.

Florida Bar v. Scott, 2010 Fla. LEXIS 860 (Fla. June 10, 2010).  Discipline.  This case arose out of suit by the CFTC against an investment firm, and the ultimate failure of the firm.  Lawyer, at various times, represented investors in the firm, creditors of the firm, and co-owners of the firm.  At one point one of the purchasers of the firm had asked Lawyer about the other owner.  Lawyer called the other owner "honest," but did not tell the purchaser that the other owner was the subject of the CFTC litigation.  Based upon all of the foregoing the supreme court ruled that Lawyer should be suspended for three years.

Atlantic City Bd. of Educ., 2010 U.S. Dist. LEXIS 88790 (D.N.J. Aug. 26, 2010).  Plaintiff sued the city over employment-related issues.  The city moved to disqualify Plaintiff's law firm because a member of that law firm had previously represented the city.  In this opinion the court denied the motion.  The court held that the earlier representation was merely an "investigation."  The court noted, among other things, that the lawyer's report to the city contained no legal analysis.  Thus, for Rule 1.9 purposes, there had been no "attorney-client relationship."

In re Mabray, 2010 Tex. App. LEXIS 7351 (Tex. App. Aug. 31, 2010).  H and W signed a "cooperative law" agreement to resolve their marital difficulties.  Texas has a "collaborative law" statute, but not a "cooperative law" statute.  Following the failure of negotiations W moved to disqualify the lawyer for H from representing H in post-negotiation proceedings.  Disqualification is a feature of "collaborative law" arrangements, but not of "cooperative law" agreements.  Thus, in this 2-1 decision, the court affirmed the trial court's denial of W's motion.

In re Egelus, 2010 Mich. App. LEXIS 1799 (Mich. App. Sept. 23, 2010).  The parties entered into a settlement agreement (nature of dispute not apparent).  Later, the defendants in this case balked.  The plaintiffs brought an action to enforce the agreement.  The trial court ruled for the plaintiffs.  In this opinion the appellate court affirmed.  One of the claimed bases for undoing the settlement was that at the time of the settlement the plaintiffs' lawyer had a conflict of interest.  The court noted that the defendants were aware of the conflict when they agreed to the settlement.

N.Y. City Op. 2011-2 (undated).  This is thoughtful opinion on the ethics implications of litigation funding arrangements.  The opinion does not condemn the practice.  This appears to be a good research tool.

Former Mediator.  Hossaini v. Vaelizadeh, 2011 U.S. Dist. LEXIS 86436 (D. Neb. Aug. 4, 2011).  This action is essentially a suit for damages arising out of a failed courtship between Plaintiff and Defendant.  Lawyer represents Plaintiff.  An earlier proceeding between Plaintiff and Defendant involved custody of their child.  Lawyer acted as mediator in the earlier proceeding.  For that reason Defendant moved to disqualify Lawyer in this case.  In this opinion the magistrate judge denied the motion.  First, the judge found that the matters were not related.  Second, as to the claim that Defendant had given Lawyer confidential information during the mediation, the court held that Defendant had not shown what the information or how it would affect this case.

How an unsolicited E-mail from a non-client might cause an attorney-client relationship and duty of confidentiality and how to avoid that result.  Wis. Op. EF-11-03 (July 29, 2011).

Neutral under Rule 2.4?  In re Dhillon, 2011 Bankr. LEXIS 3166 (S.D. Ill. Aug. 18, 2011).  Chapter 7 bankruptcy proceeding.  In this opinion the court disqualified the lawyer ("Lawyer") for certain creditors ("Creditors"), both in this proceeding and in an adversary proceeding.  Lawyer had earlier introduced the debtors and Creditors and assisted them in preparing a restaurant lease.  The court held that whether Lawyer was a "neutral" under Illinois Rule 2.4 or whether they were all clients (thus having rights under Illinois Rule 1.9), the current representation of Creditors by Lawyer was not permissible.

Kennedy v. Eldridge, 2011 Cal. App. LEXIS 1561 (Cal. App. Dec. 13, 2011).  This is a dispute between H and W over the support and custody of their infant son.  H is being represented by his father ("Father").  W moved to disqualify Father.  The trial judge granted the motion.  In this opinion the appellate court affirmed.  First, the court noted numerous California decisions saying that in extraordinary circumstances a movant need not have been a former client of the lawyer in question (i.e. no standing needed).  Second, the court held that Father was too close to W's confidential information by virtue of his involvement in family affairs.  Third, the court held that the danger that Father would testify was great.  Last, the court was worried about the welfare of the infant in this kind of situation.

Lighthouse MGA, L.L.C. v. First Premium Ins. Group, Inc., 2011 U.S. App. LEXIS 22556 (5th Cir. Nov. 7, 2011).  This case involved a court's jurisdiction and enforcement of a forum selection clause in a contract between Parties A and B.  Party B claimed that the clause should not be enforced because the General Counsel of Party A ("GC") had drafted the clause.  In this opinion the Fifth Circuit held that Party B had made no showing that GC misrepresented his relationship to Party A and had not violated Rule 1.7.  The court also held that Party B had made no showing that GC violated Rules 4.3 or 8.4(c).

Rule 1.8(i).  Mishcon De Reya New York LLP v. Grail Semiconductor, Incin., 2011 U.S. Dist. LEXIS 150998 (S.D.N.Y. January 6, 2012).  Law Firm brought an arbitration to collect a $2 million fee from a former client.  In this action Law Firm seeks an attachment in aid of the arbitration of the patent that formed the substance of the Law Firm's work.  One of the former client's defenses was that Law Firm had unclean hands because it had earlier sought to negotiate for an interest in the patent as compensation for Law Firm's work, in violation of N.Y. Rule 1.8(i) (which is almost identical to MR 1.8(i)).  The court rejected the Rule 1.8(i) defense, first by noting that Law Firm never received the interest.  Second, the court held that acquiring the interest under these circumstances would not create the kind of conflict sought to be avoided by the rule.

Confidences of Non-clients
In re Reynoso, 2012 Tex. App. LEXIS 302 (Tex. App. Jan. 12, 1012).  Lawyer represented A in suit against B.  Later, when A was out of the case, Lawyer showed up for C against B, in the same suit.  B moved to disqualify Lawyer, claiming he had given Lawyer confidences about C v. B.  The trial court granted the motion.  In this opinion the appellate court affirmed (denied mandamus).  The court noted that B was quite positive about disclosing confidences to Lawyer, and Lawyer did not remember much.  The court reviewed authorities about maintaining confidences of non-clients, mostly relating to joint defense agreements, which this, of course, was not.

In re Vinton, 2012 Colo. LEXIS 92 (Col. Feb. 13, 2012).  Suit involving administration of a trust.  Beneficiary sued Trustee for breach of fiduciary duty and fraud.  Lawyer appeared for Trustee.  Well into the case Beneficiary sought leave to amend the complaint by adding a claim against Lawyer for fraud.  The trial court granted leave, and Lawyer withdrew from representing Trustee.  In this opinion the supreme court reversed.  The court noted that ordinarily courts are "lenient" regarding requests to amend.  However, where the amendment creates a conflict of interest forcing a lawyer to withdraw, as in this case, the court must examine the amendment with greater scrutiny.  The court went on to hold that the fraud claim, as pleaded in the amendment, did not state a valid cause of action.

In re W.R., E.H. & V.R., Minors, 2012 Ill. App. LEXIS 166 (Ill. App. March 12, 2012).  In this neglect proceeding Father was represented by a lawyer who had, three years earlier, acted as a mediator for Father and Mother in a support and custody proceeding.  During the trial of this case the court learned of the mediation and ordered a new trial based on the mediator/lawyer's violation of Illinois Rule 1.12.  In this opinion the appellate court affirmed.  The main issue was the meaning of "matter" as used in the rule.  The court held that the term should be used broadly and that this neglect case was the same matter as the earlier custody case.

Mercantile Adjustment Bureau, L.L.C. v. Flood, 2012 Colo. LEXIS 389 (Col. May 29, 2012).  Plaintiff, represented by Lawyer No. 1, lost in the trial court.  Lawyer No. 1 hired Lawyer No. 2 to handle the appeal and advanced Lawyer No. 2's fees.  In this opinion the court found that this fee arrangement fell within the "expenses of litigation" exception to the prohibition of Colorado's version of Rule 1.8.  Two justices dissented.

Zimmerman v. Cardiac Arrhythmia Inst., P.A., 2012 U.S. Dist. LEXIS 75287 (M.D. Fla. May 24, 2012).  In this opinion the court approved the settlement of a FLSA claim and noted with approval that the lawyers' fees were not negotiated until after the settlement amount had been determined.  Others: Lopez v. Rib City Estero, Inc., 2013 U.S. Dist. LEXIS 132046 (M.D. Fla. Sept. 12, 2013); Trentman v. Rapid Response Team, LLC, 2013 U.S. Dist. LEXIS 123694 (M.D. Fla. Aug. 27, 2013).

Collaborative LawMandell v. Mandell, 2012 N.Y. Misc. LEXIS 3049 (N.Y. Sup. Ct. June 28, 2012).  Matrimonial case.  H and W originally discussed a collaborative law approach to resolving their differences.  W was represented by Lawyer, who represents W in this case.  H moved to disqualify Lawyer.  In this opinion the court denied the motion.  The parties never did sign a collaborative law agreement, and the court felt they had not gotten sufficiently into the process to enforce the usual provision that lawyers doing collaborative law cannot represent anyone in a subsequent dispute.

In re Jackson, 2012 Bankr. LEXIS 3496 (S.D. Tex. July 27, 2012).  In this Chapter 7 case Debtor failed to report in his petition that he had a cause of action against Law Firm, which had previously represented him.  It was fairly clear that Law Firm was guilty of a serious conflict of interest in the earlier representation.  This proceeding was to determine what should be done with the cause of action as an asset of the estate.  The partner-in-charge at Law Firm testified.  In this opinion ruling on the disposition of the cause of action the court held that the earlier conflict of interest rendered the partner's testimony in this proceeding "biased and not entirely credible."

In re Dell Inc., 2012 U.S. App. LEXIS 22155 (Fed. Cir. Oct. 23, 2012).  Patent infringement case.  The plaintiff is represented by a law firm, a named partner of which is the owner of the plaintiff.  The parties agreed that the named partner is a "competitive decisionmaker" for the plaintiff and should not participate in the case or have access to any of the defendant's confidential information.  The defendant moved for an order barring such access to all members of the plaintiff's law firm.  The trial court denied that motion.  In this opinion the appellate court affirmed (denied mandamus).  Both courts found that "competitive-decisionmaker" status was not imputed to other members of the owner's law firm.  The court did say in a footnote that screening between the owner and other lawyers in his law firm would be "appropriate."

Stebbins v. Legal Aid of Ark., 2012 U.S. Dist. LEXIS 158797 (W.D. Ark. Nov. 6, 2012).  The facts are far from clear.  Evidently, Stebbins was evicted in another proceeding.  Legal Aid refused to represent Stebbins in that proceeding, at least in part, because Legal Aid had a conflict of interest (conflict not explained in the opinion).  In this case Stebbins, claiming he suffered from Asperger's disease, sued Legal Aid under the federal ADA for not representing him in the eviction proceeding.  In this opinion the court held that the ADA did not trump Legal Aid's obligations under professional responsibility rules.

Fee-SplittingBarnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler, 2012 Cal. App. LEXIS 1290 (Cal. App. Dec. 19, 2012).  Lawyer A referred a class action case to Lawyer B, a class action specialist.  A and B entered into a fee-splitting agreement.  Later, Lawyer B claimed the agreement was invalid.  Lawyer A brought this suit against Lawyer B to enforce the agreement.  The trial court held the agreement was invalid because the lawyers failed to comply with California Rule 2-200, California's version of Model Rule 1.5(e).  In this opinion the appellate court reversed.  The court noted that in the typical case violation of the rule might well invalidate the agreement.  However, in this case, given the control that a class action specialist, such as Lawyer B, has, might require a different result.  This was particularly true in this case because of the way Lawyer B manipulated the case, including switching class representatives and otherwise making it difficult for Lawyer A to ensure compliance with the rule.

Parks v. Fink, 2013 Wash. App. LEXIS 256 (Wash. App. Feb. 4, 2013).  Lawyer did will for Testator.  The purpose of the will was to include a beneficiary who had been omitted from an earlier will.  Because of a series of misunderstandings, the cantankerous nature of Testator, and his terminal illness, the new will was never properly witnessed or notarized.  As a result, the earlier will was admitted to probate.  The beneficiary, a non-client, sued Lawyer for malpractice.  The trial court dismissed the case.  In this opinion the appellate court affirmed.  The court conducted a thorough review of cases around the country that dealt with a frustrated beneficiary's suit against the testator's lawyer for not seeing that a will was promptly executed.  The court concluded that to allow such a suit would put the lawyer in an untenable conflict of interest.  The conflict stems from the temptation of the lawyer to cause the testator to hurry up and sign out of fear of the beneficiary's potential malpractice case.

Los v. Myers Weinberg LLP, 2013 MBCA 10 (CanLII) (Man. Ct. App. Jan. 30, 2013).  Professor brought an employment proceeding against Faculty Association before the Manitoba Labour Board.  Professor sought disqualification of Faculty Association's law firm before the Manitoba trial court.  That court denied relief to Professor.  In this opinion the appellate court affirmed, holding that the Labour Board had the jurisdiction and the ability to hear the disqualification matter.

Mich. Op. RI-358 (Jan. 2013) discusses the extent to which a lawyer may limit the scope of her representation of one client at the request of another.

Childress v. Experian Info. Servs., 2013 U.S. Dist. LEXIS 85173 (S.D. Ind. June 18, 2013).  Lawyer, representing Plaintiff, sued Credit Reporting Agency No. 1 under the FCRA in another case ("Other Case").  Lawyer, representing the same Plaintiff, sued Credit Reporting Agency No. 2 in this case.  Because Lawyer had previously represented Credit Reporting Agency No. 1 in FCRA cases, Lawyer was disqualified in the Other Case.  Credit Reporting Agency No. 2 moved to disqualify Lawyer in this case.  Because Lawyer had never represented Credit Reporting Agency No. 2, the court, in this opinion, denied the motion.  The court was not moved by the fact that the two credit reporting agencies had entered into a joint defense agreement after Lawyer's representation of No. 1 had ended.  To the extent that Lawyer might somehow use No. 1's information in pursuing No. 2, the court expressed confidence that Lawyer would comply with his confidentiality obligations to No. 1 under Rules 1.6 and 1.9.

Kane Props., LLC v. City of Hoboken, 2013 N.J. LEXIS 595 (N.J. June 26, 2013).  Property owner ("Owner") petitioned Zoning Board for a variance.  Lawyer appeared on behalf of Objector and contested the variance.  Zoning Board ruled for Owner.  Objector, with new lawyer, appealed to City Council.  Lawyer became Corporation Counsel for City.  Lawyer, as Corporation Counsel, participated to a limited extent in the Objector's appeal to City Council, which ruled for Objector.  We will skip the various appeals and the extensive discussion of New Jersey land use laws and procedures and get to the result expressed in this opinion.  The New Jersey Supreme Court held that Lawyer violated New Jersey Rule 1.11(d)(2)(i) (appears identical to MR 1.11(d)(2)(i)), and held that the resulting taint required remand to the trial court to reconsider City Council's decision in light of that taint.  Among other things, the court held that the appearance-of-impropriety standard, which appeared in the Judicial Code, should also apply to private-to-government lawyer situations under Rule 1.11.

In re Formal Advisory Op. 10-1, 2013 Ga. LEXIS 617 (Ga. July 11, 2013).  The court held that the imputation provisions of Rule 1.10 apply to all members of the same circuit public defender office.

J.M. Smucker Co. v. Weston Firm, P.C., 2013 U.S. Dist. LEXIS 98371 (N.D. Ohio July 15, 2013).  Co. sued Law Firm.  Two lawyers from Law Firm appeared to defend it.  In this opinion the court disqualified one lawyer because he would be a witness.  The only ground raised as to the other lawyer was that she had a "proprietary interest" in the case in violation of Rule 1.8(i).  Because she declared that she was only an employee of Law Firm, the court found that the rule did not apply.

Indemnification in Opinion Practice.  N.Y. Op. 969 (June 12, 2013).  This opinion addresses a lawyer's preparing an opinion upon which both a client and a non-client will rely.  The opinion holds that the lawyer may ethically obtain from the client an agreement indemnifying the lawyer from claims by the non-client.  It says that Model Rule 1.8(h) applies to claims by clients, but not to claims by non-clients.

FDIC v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 2013 U.S. Dist. LEXIS 115578 (M.D. Fla. Aug. 15, 2013).  In this opinion the court upheld a jury verdict of more than $1 million against Law Firm.  The case involved a failed real estate development and a failed bank.  In short, Law Firm represented too many players in the run-up to these failures.  Of particular interest is the court's discussion of the role of ethics rules in lawyer malpractice litigation in Florida.  The court confirmed that breach of these rules could be evidence against Law Firm and that the plaintiff's expert witness could testify about them.

In re Aguilar, 2013 Tex. App. LEXIS 10468 (Tex. App. Aug. 21, 2013).  Lawyer represented his sister in getting their father's will probated and in getting her appointed executrix.  Lawyer, representing a brother and himself, brought this action against the sister for her misconduct regarding their father's assets.  The sister moved to disqualify lawyer, and the trial judge granted the motion.  Lawyer sought mandamus in the appellate court.  In this opinion the court ruled that Lawyer, having formerly represented the sister, could not represent the brother, but could represent himself.

Law Capital, Inc. v. Kettering, 2013 S.D. LEXIS 110 (S.D. Aug. 21 2013).  A note signer claimed that the note was void because his lawyer also represented the lender.  The court held that an undisclosed conflict, without more egregious misconduct, is not grounds for finding the note void.

Roosevelt Irrig. Dist. v. Salt River Project Agric. Improv. & Power Dist., 2013 U.S. Dist. LEXIS 169713 (D. Ariz. Dec. 2, 2013).  This is a suit to recover CERCLA costs.  Law Firm filed the case for Plaintiff.  Because of extended conflict-of-interest disputes regarding Law Firm, Law Firm withdrew from this case.  Because Law Firm continued to represent Plaintiff before the Arizona Department of Environmental Quality, several defendants moved, in this case, for an order preventing that representation.  In this opinion the magistrate judge denied the motion.  Most important, Law Firm is no long before the court.  The court also noted that there was no evidence that Law Firm was in any way working with Plaintiff’s new counsel on this case.  The court also noted that the potential impact (if any) of the state agency case on this case was “speculative.” The 2013 order denying disqualification was vacated in 2014. Then, in Roosevelt Irrig. Dist. v. Salt River Agric. Improvement & Power Dist., No. CV-10-0290-TUC-DAE (BGM) (D. Ariz. April 13, 2015), the same magistrate judge ruled again that his court had no authority to prevent Law Firm from handling a related proceeding before a state agency.

Tocco v. Richman Greer Prof. Ass’n, 2013 U.S. App. LEXIS 25739 (6th Cir. Dec. 26, 2013).  Borrower owed Lender $4.8 million.  Borrower retained Lawyer to explain to Lender that Borrower would pay upon receipt of an inheritance from a Saudi royal.  Evidently tired of waiting, Lender sued Lawyer.  One of the theories was negligent misrepresentation.  In affirming a summary judgment for Lawyer the Sixth Circuit held that to create a duty in favor of an adversary “would create an unacceptable conflict of interest.”  The opinion discusses the necessary elements under Michigan law to show fraudulent misrepresentation, negligent misrepresentation, innocent misrepresentation, and silent fraud.  While it is unclear what Lawyer told Lender, the court assumed for purposes of its analysis that Lawyer “did make assurances” to Lender that Borrower would pay.

Discipline under Rule 1.8(i).  Att’y Grievance Comm’n of Md. v. O’Leary, 69 A.3d 1121 (Md. 2013).  Lawyer moved in with Client while defending Client in a child support proceeding.  Because Lawyer thereby had a stake in the outcome of the support proceeding, the Maryland high court ruled that Lawyer had violated Md. Rule 1.8(i).  In a dissent one of the justices reviewed the development of the doctrines of champerty and maintenance from medieval England forward.

McClintic v. United States Postal Service, 2014 U.S. Dist. LEXIS 2152 (E.D. Cal. Jan. 7, 2014).  In this elder abuse case Lawyer, representing the guardian of the abused person, moved to withdraw.  Lawyer claimed she had a conflict of interest because the guardian had filed “an unrelated small claims action” against Lawyer.  In this opinion the magistrate judge ruled that, although Lawyer had a conflict, Lawyer should stay in the case until a pending motion to dismiss was resolved.

Confession of JudgmentHuntington Nat’l Bank v. G.J.P. Props., LLC, 2014 Ohio App. LEXIS 103 (Ohio App. Jan. 16, 2014.  Party signed a note containing a cognovit, or confession of judgment, clause.  After the creditor had a lawyer confess judgment, Party appealed raising a number of objections to the judgment.  One objection was that the lawyer confessing judgment had a conflict of interest.  The court ruled that under Ohio law cognovits were valid and that by signing it Party in effect waived the conflict.
Same result in Bay Grp. Health Care, LLC v. Ginsberg Jacobs, LLC, 2017 WL 770984 (N.D. Ill. Feb. 28, 2017). Legal malpractice case. Defendant-Lawyer had signed a confession of judgment (cognovit) at the request of a creditor of Plaintiff. In this opinion the magistrate judge granted Defendant summary judgment. Among other things the court held that the confession of judgment process does not create a lawyer-client relationship with Debtor, and there is no conflict of interest.

NYC Op. 2014-1 (January 2014).  Lawyer wants to advise an out-of-state company on the forms it uses and would be compensated based upon the company’s revenue.  The opinion briefly discusses the applicability of twenty-one different rules of the New York Rules of Professional Conduct as they may apply to the arrangement.

Prenuptial Agreement (posted January 20, 2014) Est. of Wang v. Wang, 2014 Cal. App. Unpub. LEXIS 313 (Cal. App. Jan. 16, 2014). This litigation is, in part, over the enforceability of a prenuptial agreement. H selected W’s lawyer and paid W’s lawyer $150. W met with her lawyer prior to signing the agreement. Her lawyer discussed the agreement with her in Mandarin, her native language. In this litigation W claimed the agreement was invalid because her lawyer, picked and paid-for by H, had a conflict. W lost at trial. In this opinion the appellate court affirmed. There was no evidence of trickery, dishonesty, etc. The court said merely picking someone else’s lawyer and paying that lawyer’s fees does not, without more, create a conflict.

D.C. Op. 366 (Jan. 2014). This opinion deals with the ethics implications in “private or independent adoption proceedings in the District of Columbia,” including, importantly, conflicts of interest in joint representations.

Li v. Lee, 2014 Md. LEXIS 69 (Md. Feb. 21, 2014). Retained by Lee, Gu prepared two different marital agreements between Lee and Li. Each agreement contained a recitation that Gu represented Lee and not Li, and that Li could get his own lawyer. In this suit Li asks the court to invalidate the agreements, because, in part, Gu had a conflict of interest. In this opinion the court refused to invalidate the agreements. The court did not decide whether Gu had a conflict, but noted the above recitation, and also noted that Gu had not used any of Li’s confidences.

Premium Prods., Inc. v. Pro Performance Sports, LLC, 2014 U.S. Dist. LEXIS 25103 (E.D. Va. Feb. 19, 2014). Patent infringement case. Plaintiff, holder of the patent in question, is a small corporation wholly owned by Spiegel, a lawyer. Spiegel was also the sole inventor of the patent. Spiegel filed this action on behalf of Plaintiff. In this opinion the court ordered Spiegel disqualified under Rule 3.7. Because a corporation was the plaintiff and not Spiegel, the court rejected Spiegel’s argument that this was really a pro se action. [We do not ordinarily comment on Rule 3.7 cases, but we felt the wrinkle in this case was worth a mention.]

1.8(f), Fee Paid by Another. Libertarian Party of Ohio v. Husted, No. 2:13-cv-953 (S.D. Ohio Aug. 12, 2014). This opinion resolves a discovery dispute. One of the issues involves the extent to which a litigant “controls” the identity of an “unidentified” person paying the litigant’s fees. The court concluded that because the litigant should, pursuant to Rule 1.8(f), be informed by the litigant’s lawyer of the payor’s identity, the litigant is in a position to produce a document identifying the payor.

In re Reneer, 2014 Utah LEXIS 74 (Utah May 23, 2014). Broude was arrested for criminal trespass and assault. Broude’s mother paid $6,000 to Company for a defense. Company hired Lawyer to represent Broude. Broude wound up serving 120 days in jail. The mother complained to bar enforcement (“OPC”). OPC charged Lawyer with violating Rules 1.8(f) (fees paid by another) and 8.4(a). In this opinion the court rejected the complaint. First, the court held that 1.8(f), unlike 1.8(a) and 1.8(g), has no specific reference to a written consent, thus none was required. Then, the court said that the OPC had not carried its burden to show that there was no oral consent. Finally, the court held that Rule 8.4(a) cannot be the basis of discipline unless there is a showing of violation of another rule.

In re World Trade Center Disaster Litig., 2014 U.S. App. LEXIS 10681 (2d Cir. June 9, 2014). Among other things, this opinion deals with the lawyers’ fees in the settlement. While the court noted several potential conflicts in the fee arrangement, without really specifying the nature of these conflicts, the court affirmed in large part the district court’s approval of the fees.

Jajj v. 100337 Canada, 2014 ONSC 3411 (CanLII) (Super. Ct. Ont. June 5, 2014). In this opinion the court held that lawyers acting “in association” are subject to the same rules on conflicts and disqualification as lawyers in the same law firm. [Note: not being familiar with all things Canada, we had not encountered the term “in association” and why lawyers would practice in that manner. It appears that such lawyers want all the advantages of separate law practices, while, at the same time, create the appearance of a law firm.]

Cohen v. Perelman, 2014 N.J. Super. Unpub. LEXIS 1537 (N.J. Super. Ct. Chancery Div. June 24, 2014). All lawyers are familiar with the ubiquitous Hudson Newsstands in airports. This case involved the son of the founder of that company. The son died in 2009 leaving several family members as heirs. A series of will contests erupted resulting in this 75-page opinion (there were 35 additional pages listing witnesses and exhibits). The opinion is largely about whether several lawyers had conflicts of interest and exerted undue influence over the testator. The opinion is very fact-intensive and New Jersey-centric. Thus, we have made a judgment not to analyze it further. However, the opinion is a text book treatment of New Jersey undue influence law, and any T&E lawyer practicing in New Jersey should find it to be valuable.

Cost Award (posted July 19, 2014) McFarland v. Spanos, 2014 ONSC 4222 (CanLII) (Ont. Super. Ct. July 19, 2014). Defendants suggested to Plaintiffs’ Lawyer (“Lawyer”) that he had a conflict and should withdraw. Initially, Lawyer refused. Defendants moved to disqualify Lawyer, and Lawyer withdrew before a ruling. In this opinion the court awarded costs to Defendants for the disqualification effort. Defendants sought $46,000; the court awarded $15,000.

Greenberg v. Colvin, 2014 U.S. Dist. LEXIS 109400 (D.D.C. Aug. 8, 2014). Very arcane issue as to entitlement to fees of lawyers handling class actions for the recovery of Social Security benefits. A party objected to a certain fee provision because it constituted a conflict of interest. The court rejected that argument for reasons apparently uniqued to SSA proceedings. Lawyers handling such matters might find the opinion useful.

Storfer v. Dwelle, 2014 U.S. Dist. LEXIS 112336 (D. Idaho Aug. 13, 2014). Lawyer malpractice case. Law Firm defended claiming it did not have a lawyer-client relationship with Plaintiff at relevant times. Law firm moved for summary judgment. In this opinion the district judge denied the motion. Very fact-intensive. Law Firm’s problems stemmed primarily from the fact that it did represent Plaintiff at different times on different matters, arguably related to this case. The court highlights along the way the various ways Law Firm allowed the situation to proceed without any clear delineation of who represented whom and when. This included the lack of engagement or disengagement letters or other documentary support of their claimed non-representation. The court said lawyers should document these things.

Hillhouse v. Hawaii Behav. Health, LLC, 2014 U.S. Dist. LEXIS 114119 (D. Haw. Aug. 18, 2014). Former client case where the former lawyer-client relationship was in dispute. This fact-intensive opinion is not of much precedential value. However, the magistrate judge’s opinion contains a good discussion of the need for the client to subjectively believe that she was a client and the need for that belief to be objectively reasonable.

Performance Diversified Fund v. Flatiron GP Inc., 2014 ONSC 6892 (CanLII) (Super. Ct. Ont. Nov. 27, 2014). Law Firm represents Plaintiff. During that representation a trader for one of the defendants sought and obtained advice from a lawyer at Law Firm not handling this case. When the defendants moved to disqualify Law Firm, the motion judge granted the motion, primarily because Law Firm’s conflicts checking system failed and for “public confidence concerns.” In this opinion another Superior Court judge granted leave to appeal, saying the motion judge’s ruling was “open to very serious debate.” Among other things, the court noted that the defendants were not current or former clients of Law Firm. In a 2-1 decision, the Divisional Court at Performance Diversified Fund v. Flatiron GP Group, 2016 ONSC 1133 (Super. Ct. Ont. Feb. 19, 2016), reversed the motions judge basically because the complaining former client was no longer complaining.

Olszewski v. Jordan, 2015 WL 754507 (Conn. March 3, 2015) (date discrepancy not understood). In this opinion the court held that lawyers in a divorce proceeding may not have a charging lien on marital assets. The court based its holding in part on the conflict of interest between a lawyer and the client when negotiating over reconciliation, child custody, and/or allocation of assets. The lawyer would be tempted to argue for a resolution that would make maximum assets available for enforcement of the lien, to the detriment of the client’s other interests.

Wise v. Wash. County, 2015 WL 1757730 (W.D. Pa. April 17, 2015). Section 1983 case brought by Prisoner for mistreatment while in custody. This is a long opinion dealing with Defendants’ motion for sanctions against Prisoner’s lawyer (“Lawyer”). Almost all the discussion is of no particular interest to this audience. There is an interesting, several-page, discussion of the propriety of a plaintiff’s lawyer, in a civil rights case, negotiating for his client and for his fees at the same time.

Conflict not Categorized (posted April 22, 2015) Ewald v. Royal Norwegian Embassy, 2015 WL 1746375 (D. Minn. April 13, 2015). This is a claim for lawyers’ fees arising out of Plaintiff’s claim under Minnesota’s unequal pay law. Of interest here is that Plaintiff’s counsel included in its fee schedule time for researching whether it had a conflict of interest in bringing the unequal pay claim. In this opinion the court held, among other things, that the conflicts work did not relate to Plaintiff’s claim for unequal pay and should not be included in the award of fees.

United States v. Med-Care Diabetic & Med. Supplies, Inc., 2015 WL 1951577 (S.D. Fla. May 1, 2015). Earlier, in this qui tam action Plaintiff’s lawyer (“Lawyer”) was disqualified because of a conflict. This opinion deals with Defendant’s ensuing motion for sanctions arising from the disqualification. In the opinion the magistrate judge denied the motion because Lawyer’s conduct in dealing with the conflict, although “far from ideal,” did not appear to be in bad faith.

Delorme v. Canada, 2015 ABQB 240 (CanLII) (Ct. Q.B. Alb. April 14, 2015). Alberta has a court rule that provides that a case in which there has not been a “significant advance” in three years should be dismissed. In this case the issue was whether resolution of a conflict of interest is a “significant advance.” In this fact-intensive opinion the court held that it was and denied a motion to dismiss.

Marketel Media, Inc. v. Mediapotamus, Inc., 2015 WL 3650765 (E.D.N.C. June 11, 2015). This is a discovery dispute dealing primarily with the attorney-client privilege. One of the parties suggested that another party loses the privilege if that party’s lawyer has a conflict of interest. In this opinion the court said not so.

Skipper v. Ace Prop. & Cas. Ins. Co., 2015 WL 4269817 (S.C. July 15, 2015). A federal district judge certified to the South Carolina Supreme Court the question whether a legal malpractice claim can be “assigned between adversaries in litigation in which the alleged legal malpractice arose.” In this opinion, following a majority of courts in other jurisdictions, the court held that such an assignment is invalid. An important reason is that such an assignment creates a conflict of interest.

CEI Enters. Inc. v. Anchin Block & Anchin LLP, No. 1:09-cv-11708 (D. Mass. July 9, 2015). [Note: this entire summary is based upon an article in the July 9, 2015 online edition of Law360.] This is a malpractice suit against an accounting firm. Law Firm represents the defendant. While this case was pending, Law Firm brought in Lawyer as a partner. While an Assistant United States Attorney, Lawyer’s colleagues handled investigations into the affairs of Plaintiff and the defendant accounting firm. Plaintiff moved to disqualify Law Firm. Law Firm argued that Lawyer was screened from Plaintiff’s matter while with the United States Attorney’s office because he had earlier represented the accounting firm. On July 9, 2015, the court denied the motion.

Sequence of Rulings. Grimes v. Dist. of Columbia, No. 13-7038 (D.C. Cir. July 21, 2015). Patricia Grimes filed a wrongful-death civil rights case against D.C. arising out of the beating death of her son, Karl, while in D.C. custody. The case has a tortured history, so we will distill things a bit. There was pending before the trial court Grimes’ motion to disqualify D.C.’s lawyer and D.C.’s motion for summary judgment. The judge granted summary judgment and then denied the motion to disqualify as moot. In this opinion the appellate court reversed, holding that the judge should have ruled on the motion to disqualify first. The court relied, in part, upon a similar ruling in Bowers v. Ophthalmology Grp., 733 F.3d 647, 654 (6th Cir. 2013). [Note: We learned of the Grimes case in the July 26, 2015, posting at Professor Alberto Bernabe’s excellent Professional Responsibility Blog.]

Jacoby & Meyers, LLP v. Presiding Justices, 2015 WL 4279720 (S.D.N.Y. July 15, 2015). In this opinion the court held that New York regulations, including Rule 5.4, preventing non-lawyer ownership of law firms, did not offend the U.S. Constitution. Long opinion with 162 endnotes.

Sample v. City of Woodbury, 2015 WL 5165359 (D. Minn. Sept. 3, 2015). City hired Law Firm to prosecute Sample for crimes. Ultimately Sample sued Law Firm for wrongful prosecution. Law Firm moved to dismiss, asserting prosecutorial immunity. The court, in this opinion, held that Law Firm enjoyed that immunity notwithstanding a claim that Law Firm had a conflict of interest in a related civil proceeding.

Vill. of Vernon Hills v. Vernon Hills Police Pension Fund, 2015 IL App (2d) 140954-U (Ill. App. Sept. 14, 2015). In this opinion the appellate court upheld a pension award to a disabled policeman. The village had moved to disqualify the policeman’s lawyer at the pension board hearing. The board struck the motion. In this opinion the appellate court held that under Illinois statutory law municipal pension boards do not have authority to disqualify lawyers.

Sprengel v. Zbylut, 2015 WL 5949465 (Cal. App. Oct. 13, 2015). Member 1 and Member 2 were 50% owners of LLC. They had a falling-out, and litigation ensued. Member 1 retained Law Firm to represent LLC. After that litigation was resolved, Member 2 brought this suit against Law Firm. In it Member 2 is claiming that Law Firm represented Member 2 by virtue of her being a 50% owner, but Law Firm structured its representation to favor Member 1. Thus, Member 2 is claiming that Law Firm had a conflict of interest. Law Firm filed a special motion to strike the complaint under California’s Anti-SLAPP statute. The trial court denied the motion. In this 2-1 decision the appellate court affirmed. The majority held that Law Firm’s earlier work was not “protected petitioning activity.” The dissent, noting that the majority was relying on a number of earlier California appellate cases, opined that those cases were wrongly decided.

Sanctions for Frivolous Motion to Disqualify. In re Eliopoulos, 2015 WL 6684737 (S.D. Fla. Nov. 2, 2015). One party in this bankruptcy case had moved to disqualify a law firm for violating Rule 1.18. In an earlier order the court denied the motion as frivolous and ordered the moving party to pay sanctions. In this opinion the bankruptcy judge addressed the amount and determined that $168,000 was appropriate. Evidently, the losing lawyers and the losing party did not endear themselves to the court, who described their conduct, arguments, and demeanor, as, variously, “ridiculous,” “petty and frivolous,” “piddling,” “silly,” “sanctimonious,” “pure applesauce,” “no whiff of regret,” “no hint of contrition,” “vindictive and meanspirited,” “arrogant and overbearing bullies,” and “pharisaical.” Just a very unhappy bankruptcy judge.

Conflict as Grounds for Vacating Arbitration Award. TCR Sports Broad. Holding, LLP v. WN Partner, LLC, No. 652044/2014 (N.Y. Sup. Ct. Nov. 4, 2015).

I.W. v. School Dist. of Phila, 2016 WL 147148 (E.D. Pa. Jan. 13, 2016). Parents brought an administrative proceeding regarding the District’s obligation to provide specialized educational services to their child. Parents’ lawyers did not charge for their services. Rather, the parents signed a retainer agreement in which they assigned to the lawyers any fee-shifting award to Parents. Parents brought this suit to recover costs and lawyers’ fees from District. One of District’s objections was that the fee assignment violated Pennsylvania’s version of Model Rule 1.8(i). The court overruled that objection, holding no violation of Rule 1.8(i). The court went on to say that the assignment was “consistent with public policy.”

Kunda v. Wood, Ris & Hames, PC, 2016 WL 229762 (Col. Jan. 19, 2016). Heirs sued for malpractice the law firm that drafted their father’s estate plan. In this opinion the court upheld the dismissal of the case under Colorado’s “strict privity rule.” According to the court, a different rule could create a conflict of interest for a testator’s lawyer if he/she had to be concerned about the interests of third parties.

Chandra v. Chandra, 2016 IL App (1st) 143858 (Ill. App. April 13, 2016). Doc 1 and Doc 2 were brothers. Doc 3 occasionally “covered” for Doc 1. Eventually, Doc 1 discovered that Doc 3 was committing Medicare and Medicaid fraud in connection with Doc 1’s cases, and perhaps other cases. Because Doc 2 was also a lawyer, Doc 1 consulted with Doc 2 regarding how to proceed. Doc 2 found Lawyer to represent both of them. They met and agreed that Lawyer would file a qui tam action agains Doc 3 with Doc 1, for strategic reasons, as the sole relator. They signed an agreement that said Lawyer would get 40% off the top of any qui tam recovery and that Docs 1 and 2 would split the remainder evenly. Lawyer filed the suit. The government intervened and achieved a settlement. The relator’s share was $1,335,569.86. From there, things went downhill, and litigation erupted among Docs 1 and 2 and Lawyer, regarding who gets what. There were contract issues and litigation procedure issues. We will mention here just two ethics issues: (1) The appellate court held that the retention agreement did not violate Illinois Rule 5.4 as to sharing fees with non-lawyers; and (2) the court held that Lawyer’s representing both Docs 1 and 2 with respect to the qui tam proceeding did not constitute a conflict of interest under Illinois Rule 1.7. Both the trial court and appellate court ruled that the retention agreement should be enforced according to its terms. The appellate court reversed the trial court on a pre-judgment interest issue. A nearly identical opinion in the same case appeared in February 2016, Chandra v. Chandra, 2016 IL App (1st) 143858-U (Ill. App. Feb. 10, 2016). We have not taken the time to compare the opinions’ differences, if any.

Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. March 32, 2026). This is a discovery dispute in a Fair Housing Act case. Defendants moved for sanctions against Plaintiff and her lawyer for spoliation of social media evidence. Defendants also moved to disqualify Plaintiff’s lawyer because their relative blame for the spoliation created a conflict of interest for the lawyer. In this opinion the magistrate judge denied the motion to disqualify, saying that to disqualify lawyers in this circumstance would simply provide litigants with further grounds for delay.

Murray v. Just in Case Business Lighthouse, LLC, 2016 WL 3390765 (Col. June 20, 2016). Expert Witness agreed to a contingent fee in violation of Colorado’s version of MR 3.4(b). In this opinion the court held that the Colorado Rules of Evidence trump the ethics rules and that the expert’s testimony is not per se excludable. As to the evidence rules, the issue is credibility, which is an issue for the trier of fact.

Perez v. Brain, 2016 WL 4059689 (C.D. Cal. July 25, 2016). This is a suit by the U.S. Dept. of Labor against certain trustees of an ERISA plan and the plan’s counsel. The suit contends that the trustees and counsel retaliated against plan employees who had cooperated in an investigation of one of the defendant trustees. In this opinion the court removed that trustee and counsel from their respective roles. Among other things, the court noted the undisclosed “romantic relationship” between the offending trustee and counsel.

Vitiating Contract. Moon Landscaping, Inc. v. Burris Constr. Co., Inc., 2016 WL 4574707 (N.J. App. Div. Sept. 2, 2016). Absent "rare circumstances" court will not refuse to enforce a contract because one of the parties claimed a conflict of interest.

N.Y. Op. 1085 (Feb. 2016) discusses a lawyer’s ongoing duty to check for conflicts under various circumstances.

Centennial Bank v. ServisFirst Bank Inc., 2016 WL 6037552 (M.D. Fla. Oct. 14, 2016). The opinion is about a motion to compel and resistance based upon the attorney-client privilege. In the opinion the court said, among other things, the fact that the lawyer being communicated with might have a conflict of interest does not vitiate the privilege.

McCain v. Melanson, 2016 ONSC 6350 (CanLII) (Super. Ct. Ont. Oct. 18, 2015). Suit by W for an annulment, based upon H’s deceit and misrepresentations. Counterclaim by H for divorce. H hired Lawyer for this case. W moved to disqualify Lawyer. The crux of the motion is that Lawyer had earlier appeared against W in a dispute with her former husband and had appeared against W’s siblings in other litigation. W claims that Lawyer would have learned about her traits and foibles in the earlier litigation giving H a leg up in this case. In this opinion the court disagreed and denied the motion. The analysis was essentially a “sufficiently-related” one and very fact-specific. A focus was on a psychiatrist’s opinion in the earlier case concerning W’s “parenting capacity.” The court said that that issue had little to do with W’s allegations of misrepresentation and deceit in this case.

Adkisson v. Jacobs Eng’g Grp., Inc., 2016 WL 6534273 (E.D. Tenn. Nov. 1, 2016). Defendant retained Law Firm to prepare defenses in a series of consolidated cases. Law Firm interviewed a number of third-party individuals and made their names available in discovery. When their depositions were taken, Law Firm represented them in the depositions, at no charge to the witnesses. The plaintiffs moved to disqualify Law Firm. In this opinion the court denied the motion. Although a Law Firm partner admitted that Law Firm did not obtain informed consent, a written waiver of potential conflicts, or a written representation agreement, the court denied the motion to disqualify. The court did “admonish” Law Firm and ordered all counsel in the case to take the above steps in case of non-party witnesses. There were also issues regarding Rules 4.3 and 7.3, which we will not discuss here. [Note: Anyone representing non-party witnesses in their depositions should probably read this opinion.]

Burns v. Rhine, 2016 WL 6684814 (N.D. Cal. Nov. 14, 2016). Lawyer, co-trustee of a trust (“Trustee No. 1”), brought a proceeding against his co-trustee (“Trustee No. 2”) to recover improper payments to Trustee No. 2. This magistrate judge opinion deals with whether Trustee No. 1, a lawyer representing himself, is entitled to fees from the trust. The court held that allowing a lawyer representing himself to receive fees would be a conflict of interest. The court denied the fees.

In re Sabatino, 2016 WL 6995384 (Pa. App. Nov. 30, 2016). Proceeding to determine competency. The trial court appointed Lawyer to represent the alleged incapacitated person (“IP”). Lawyer recommended to the court that IP needed a guardian. Disability Rights Pennsylvania moved to disqualify Lawyer because she did not advocate for IP and oppose a guardianship. The trial court denied the motion. In this opinion the appellate court affirmed, explaining that Lawyer’s compliance with Rule 1.14 did not result in a conflict of interest in violation of Rule 1.7.

Reznick v. Livengood, Alskog, PLLC, 2016 WL 7470037 (Wash. App. Dec. 27, 2016). Malpractice case against Law Firm that handled an estate plan for Testator. As Testator neared death a member of Law Firm botched Testator’s intended revocation of her will. As a result, two non-client relatives lost out on a considerable share of the estate. They sued Law Firm. The trial court granted Law Firm summary judgment. In this opinion the appellate court affirmed. The court reasoned that to allow non-clients to sue lawyers under these circumstances would create an “irreconcilable conflict of interest.” Lawyers worried about satisfying non-clients might feel forced to act in ways that frustrate the intention of the actual client.

Johnston Estate v. Johnston, 2017 BCCA 59 (CanLII) (Ct. App. B.C. February 3, 2017) This opinion, in part, affirmed a lower court holding that the intended beneficiary of a will does not have a cause of action against the testator’s lawyer. Allowing such actions would put the lawyer in “an obvious and untenable conflict of interest.”

McKenna v. Chesnoff, 2017 WL 714342 (D. Nev. Feb. 23, 2017). Plaintiff was injured in an auto accident. Law Firms A and B filed a tort suit for her. Unhappy with the result, Plaintiff brought this malpractice suit against Firm A. During discovery Firm A sought to depose two partners at Firm B, Lawyers X and Y. When Defendants learned that X and Y intended to represent each other at their respective depositions, Defendants sought an order preventive them from doing so. In this opinion the magistrate judge denied Defendants’ request. The opinion deals primarily with federal procedure and evidence rules. It rejects Defendants’ argument that Nevada Rule 3.7 somehow applies.

Moon Landscaping, Inc. v. Burris Constr. Co., Inc., 2017 WL 876024 (N.J. App. Div. March 6, 2017). A sued B for breach of contract. A was represented by Lawyer X at Law Firm. X’s partner was doing estate planning work for B’s majority shareholder. A and B entered into a settlement agreement. The trial court disqualified Law Firm but ordered that the settlement be enforced. In this opinion the appellate court affirmed. The court said the “strong policy favoring settlements” outweighed the conflict.

“Appearance of Impropriety” Jaskula v. Dybka, 2017 IL App (1st) 160014-U (Ill. App. Unpub. March 23, 2017). The trial court had disqualified Defendants’ lawyer. In this opinion the appellate court reversed. The opinion contains an unremarkable “substantial relationship” analysis along with noting a three-year delay in bringing the motion. Of most interest — at least to us — was the appellate court’s emphasizing the trial court’s error in considering the “appearance of impropriety” as grounds for disqualification. That standard is not in the current Illinois Rules of Professional Conduct and was specifically rejected in Schwartz v. Cortelloni, 685 N.E.2d 871 (Ill. 1997).

C.D.S. Inc. v. Zetler, 2017 WL 1103004 (S.D.N.Y. March 23, 2017). This case has a special master (“SM”). Law Firm moved to substitute as counsel for Plaintiff. Law Firm and SM have had dealings in the past, including co-authoring several articles. They may also have discussed this case in the past. In this opinion the magistrate judge denied Law Firm’s motion. The judge said that had Law Firm been in the case when the SM was considered a candidate, the SM would never have been approved. Therefore, it would not be appropriate to allow Law Firm in the case for the same reasons.

Issue Preclusion; Collateral Estoppel (posted May 24, 2017) Villas at Highland Park Homeowners Ass’n, Inc. v. Villas at Highland Park, LLC, 2017 WL 2224369 (Col. May 22, 2017). This is a construction-defect case brought by Homeowners Association (“HA”) against Developer and other defendants (“This Case”). Lawyer represents HA in This Case. In the past Lawyer has represented Developer. For that reason Developer moved to disqualify Lawyer in This Case. The trial court denied the motion. Rather than analyze the motion under Rule 1.9(a), the trial court found that the denial of a similar motion in yet another case (“Sawgrass Case”) basically decided the motion under the “issue preclusion” doctrine. The Sawgrass Case was also a construction-defect case brought by a different homeowners association against Developer, in which Lawyer represented the homeowners association. Developer moved to disqualify Lawyer in the Sawgrass Case and the court there denied the motion, thus “precluding” a different result for the trial court in This Case. In this opinion a majority of the Colorado Supreme Court made absolute a rule to show cause and remanded This Case to the trial court to do an independent analysis under Rule 1.9. Three judges dissented. [Our note: This is our first “issue preclusion” conflicts case in the 17 years of this site. That is a fancy phrase for collateral estoppel. We are not sure of its precedential value given the dissent, and all. Thus, if you see something of interest in this summary, you might dip your toe in the full opinion, including the dissent.]

Export Dev. Canada v. ESE Elecs. Inc., 2017 WL 3122157 (C.D. Cal. July 10, 2017). A dispute arose over whether a party or his lawyer was responsible for failure to produce a document required in discovery. The court raised on its own motion whether that created a conflict between the party and his lawyer. The court, in this opinion, held that it was an unwaivable conflict and that, if an opposing party made a motion for sanctions, the party would have to get other counsel on sanctions issues. However, the court allowed the lawyer to remain as to all other issues because the party signed a conflicts waiver, which appeared to explain adequately all the above.

Lawyer May Represent SelfHerczl v. Feinsilver, No. 504440/13; 2014-07578 (N.Y. App. Div. Sept. 20, 2017). This is a breach of contract case against a lawyer arising out of the lawyer's business dealings. Lawyer/Defendant appeared for himself. Plaintiff moved to disqualify Lawyer. The trial court granted the motion. In this brief opinion the appellate court reversed. Citing a number of New York authorities, the court said that, absent a compelling reason,  lawyers may represent themselves.

In re Fagan, 2017 WL 5185449 (Ia. App. Nov. 8, 2017). The probate court appointed a guardian for Fagan.  Fagan appealed claiming that the guardianship should have been a limited one.  In this opinion the appellate court raised sua sponte that Fagan was denied representation in the trial court. The probate court had appointed Lawyer to represent Fagan. Instead of advocating for Fagan, Lawyer performed the role of guardian ad litem. The court held that Lawyer had a conflict of interest and remanded the case for appointment of counsel for Fagan and "further proceedings." One judge dissented on procedural grounds.

Fees to Disqualified Lawyer. Hawkins v. Eighth Judicial Dist. Ct., 2017 WL 6629205 (Nev. Dec. 28, 2017). After Lawyer changed firms, his new firm ("Law Firm") was disqualified because Lawyer had earlier represented Plaintiff, on the other side of this case. In the meantime, Plaintiff was sanctioned for discovery abuse including an award of lawyers' fees. Defendant sought fees for Law Firm for work done prior to Law Firm's disqualification. The trial court granted those fees on a reduced basis, the reduction not related to the disqualification. Plaintiff sought mandamus objecting to Law Firm's fees because of the disqualification. In this opinion the Nevada Supreme Court granted mandamus and remanded to the trial court to reconsider Law Firm's fees in accordance with Restatement § 37, cmt. d. That comment does provide guidance for determining when disqualified firms may receive fees, and how much.

United States v. Prevezon Holdings, Ltd., 2018 WL 1605216 (S.D.N.Y. March 30, 2018). 2016 WL 6069181 (2d Cir. Oct. 17, 2016). For approximately nine months in 2008 and 2009, Law Firm represented Co. #1 in proceedings involving fraud in Russia. Co #1 then changed law firms. More recently, Co. #2 retained Law Firm to defend this case, a different case, which involves essentially the same fraud. Co. #1, not a party in this case, twice moved to disqualify Law Firm. The district court denied each motion. The Second Circuit reversed the second denial (granted mandamus). The crux of the decision was that  after terminating the relationship with Co. #1, and when the government turned its guns on Co. #2, Law Firm made arguments that the fraud was really Co #1’s fault. The Second Circuit treated this as a former-client situation, and found that the representations were substantially related, and that the current representation was adverse to Co #1, 2016 WL 6069181 (2d Cir. Oct. 17, 2016). Back in the district court (here) Co#1 sought sanctions against Law Firm, including some $1 million in lawyers' fees, for being so stubborn about not withdrawing. In this opinion the court denied sanctions, noting, among other things, that the rights of non-party witnesses was a question of "first impression," in the Second Circuit.

Third-Party ("Closing") Opinion Letter (posted May 5, 2018) UC Funding I, LP, Trustee v. Berkowitz, Trager & Trager, LLC, 2018 WL 2023485 (D. Conn. May 1, 2018). Borrower borrowed money from Lender. Borrower's law firm provided a closing opinion addressed to Lender. The loan agreement provided that Lender would have certain security rights to Borrowers' real estate. The loan went bad, and Lender learned that Borrower did not own 100% of the subject real estate. As a result Lender lost $13,000,000. Lender brought this case against Law Firm for breach of contract and related remedies. In this opinion the court granted a motion to dismiss, primarily because Lender was not Law Firm's client and there was no contractual language giving Lender rights against Borrower's law firm. Among other things, the court said that without "express language" obligating Law Firm to Lender, Connecticut's RPC 1.7 (a) would prevent Law Firm having obligations to both Borrower and Lender.

SLAPPYeager v. Holt, 2018 WL 2228304 (Cal. App. May 16, 2018). Legal malpractice case. Defendant Law Firm moved to dismiss under California's anti-SLAPP law. The trial court denied the motion. In this opinion the appellate court affirmed. The court said lawyer malpractice cases, including cases based upon a lawyer's conflict of interest, do not normally satisfy "the first prong" of the SLAPP analysis.

Rule 1.8(c). In re Mardigian Estate, 2018 WL 3077084 (Mich. June 21, 2018). Lawyer drafted estate plan for Client leaving Lawyer and Lawyer's family more than $10 million (amount in press accounts). Trial court held Lawyer was not entitled to the money. The appellate court reversed and remanded. In this divided opinion one faction of the Michigan Supreme Court held that violation of Michigan's version of Model Rule 1.8(c) should not automatically invalidate a testamentary instrument. The other faction disagreed. Both opinions contained extensive discussions of the interaction of prior precedent with adoption of Michigan's probate laws, and the history of Michigan ethics rules. Introducing a discussion of the ethics rules, one of the judges began, "Bear with me; this part is a bit of a slog." (It really wasn't a slog at all.) We are not sure, but it appears that the appellate court's remand stands, and the trial court will conduct a trial on undue influence. In that case, Lawyer is not out of the woods.

Litigation Funding; Fee Sharing. NYC Op. 2018-5 (July 2018). In some litigation funding arrangements the client deals directly with the funder, and the loan repayment is contingent upon the client's being successful. The rule on sharing fees with non-lawyers is not implicated. Where the arrangement is between the lawyer and the funder, and the funder's loan must be paid regardless of outcome, fee-sharing is also not implicated. However, where the arrangement is between the lawyer and funder, and repayment of the loan is contingent upon the lawyer's receipt of fees, the Committee opined that this arrangement is a violation of the fee-sharing prohibition of New York's Rule 5.4(a).

Rule 1.12. In re Maurer, 364 Or. 190 (Ore. Dec. 13, 2018). Disciplinary proceeding involving Lawyer, who had been a judge. While a judge, Lawyer presided over a divorce proceeding between H and W. This included an acrimonious contest regarding custody of the parties' daughter. In a later proceeding W sought to have H held in contempt for violating a different judge's order regarding treatment of the daughter. H hired Lawyer (no longer a judge) to represent him in the contempt proceeding, which ended well for H. The Bar then charged Lawyer with violating Rules 1.12 and 8.4(a)(4). A trial panel found no violation. In this opinion the Oregon Supreme Court held that Lawyer did violate Rule 1.12 because the contempt proceeding was "in connection with a matter in which [Lawyer] had participated" as a judge. Because the court found that any injury to W was not "substantial," it found Lawyer had not violated Rule 8.4(a)(4). The court ordered Lawyer suspended for 30 days.

Rules 1.11 & 1.12. Brooks v. Berryhill, 2019 WL 120767 (D.D.C. Jan. 7, 2019). Plaintiff made claim for Social Security disability at SSA. After SSA denied his claim, Plaintiff filed this case. The court, finding error, remanded the claim to SSA. Plaintiff filed a motion for fees earned by his lawyer ("Lawyer"). Lawyer's problem was that, while serving as an ALJ, she had conducted a partial hearing in Plaintiff's case. (Another ALJ, later, denied the benefits.) On the fee petition the magistrate judge ruled that Lawyer's fees should be reduced to that amount earned before Lawyer became aware that she had a conflict problem. In this opinion the district judge affirmed the magistrate judge. We will not, here, cover the extensive analysis of the district judge other than to mention her discussion of 18 U.S.C. §207 (conflict of interest statute) and D.C. Rules 1.11 and 1.12.

Rule 1.12. Hassett v. Olson, No. C092212 (Cal. App. Unpub. 3d Dist. April 20, 2022). Hassett brought this case in El Dorado County to enforce his right to purchase certain South Lake Tahoe property ("The Property"). The defendant/sellers retained Steven Bailey to help defend. Hassett moved to disqualify Bailey because Bailey is a former El Dorado County judge who had made earlier rulings regarding The (same) Property. Hassett was not a party to those earlier proceedings. The trial judge granted the motion to disqualify, relying on California's version of Model Rule 1.12. In this opinion the appellate court affirmed. Because the opinion is "Unpublished," we will look at the issues only briefly. First, the court ruled that Hassett had standing to bring the motion. Even though Hassett was not a party in the earlier proceedings, Bailey's violation of Rule 1.12 was so serious as to "undermine the integrity of the judicial process." Last, the court ruled that the earlier proceedings and this case are all part of the same "matter" as the term is used in Rule 1.12.

Jarvis v. Jarvis, 2019 WL 1254013 (Cal. App. March 19, 2019). Todd Jarvis and James Jarvis are the 50% owners of Jarvis Properties, a limited partnership ("LP"). They are at odds over what to do with property in the LP. James filed this action for partition against Todd and LP. Todd hired a lawyer for himself and and hired a different lawyer, William Roscoe, to represent LP. A California statute provides, in effect, that a 50% owner cannot act on behalf of a partnership. Therefore, James moved to disqualify Roscoe. The trial court granted the motion. In this opinion the appellate court affirmed. The court could not nail down precedent for this situation. While repeatedly emphasizing that this was not a conflict of interest situation, the court discussed California conflicts law extensively. The court did not say how LP's successor lawyer should be selected but seemed confident that the trial court would figure something out under its "inherent and equitable powers."

Re: Nat'l Prescription Opiate Litig., No. 1:17-md-2804 (N.D. Ohio March 19, 2019). From 2009 until 2017 Carole Rendon ("Rendon") was a lawyer in the office of the U.S. Attorney for the N.D. of Ohio ("the Office"). During that period Rendon represented the Office in an opiode task force, which included health professionals, state and local law enforcement, and others. Included were City of Cleveland ("City") and Cuyahoga County ("County"). In 2017 Rendon left government and joined Baker & Hostetler ("B&H"). After Rendon joined B&H, City and County joined in lawsuits against opiode providers, including Endo Int'l PLC ("Endo;" full name from press account). Rendon appeared for Endo. City and County moved to disqualify Rendon and B&H. In this opinion the court granted the motion. The court found that Rendon did not violate Ohio Rule 1.11(a), but did violate Rule 1.11(c). The court relied in significant part on a letter from a Senior Trial Counsel from the Office claiming that City and County did share relevant nonpublic information with Rendon while she was on the task force.

Perez v. Noah's Ark Processors, LLC, 2019 WL 2076793 (D. Neb. May 10, 2019). The NLRB is suing Employer to enjoin alleged unfair labor practices. During the NLRB investigation Employer retained Law Firm to counsel affected employees at Employer's expense. Clearly Law Firm did not represent Employer in this case, but it is less clear whether Law Firm represented Employer on other matters. The court assumed that Law Firm was fulfilling its "ethical obligation" not to represent Employer in this matter. Thus, the court found that providing counsel to the employees was not an unfair labor practice. The court did order an injunction on other claims in the case.

In re Estate of Mueller, 2019 WL 2554344 (Kan. App. June 21, 2019). Lorine Mueller died in 2017. She left two children, Margo and Gary, and a widowed daughter-in-law, Cheryl. Lorine's 2007 will left most of her estate to Cheryl. Margo and Gary contested the will, claiming Cheryl exercised undue influence over Lorine. The trial judge admitted the will after a hotly contested hearing. Margo and Gary appealed. In this opinion, the appellate court affirmed. Cheryl's influence over Lorine was the key focus. A side issue - but an important one - involved the various roles of the  Tessendorf law firm at various times during the last ten years of Lorine's life. The law firm players were Jacqueline Tessendorf ("Lawyer Jacqueline") and Ryan Tessendorf ("Lawyer Ryan"), spouses. Lawyer Jacqueline represented Lorine in a contested conservator proceeding brought by Margo and Gary, which they later dropped. Lawyer Ryan then prepared a new will for Lorine, the one in this case, leaving practically everything to Cheryl. Later, Lawyer Jacqueline did some odd tasks for Lorine. There is more, but you get the idea. Among other factors favoring the Tessendorf firm was that Lawyer Jacqueline and Lawyer Ryan were never involved with Lorine at the same time. Even more important, Margo and Gary were unable to show a breath of suspicious conduct by either Lawyer Jacqueline or Lawyer Ryan in any dealings with Lorine, Lorine's children, or Cheryl.

Stevenson v. Stanyer, 2019 WL 2895378 (Wash. App. Unpub. July 3, 2019). Lawyer prepared estate plan for Decedent. Upon Decedent's death, Beneficiaries realized arguably negative tax treatment, given the structure of the plan. The PR of the estate brought this suit against Lawyer for malpractice. The trial court denied Lawyer's motion for summary judgment. In this opinion the appellate court reversed. It held that an estate planning lawyer has no duty to beneficiaries to address their tax consequences unless the lawyer is explicitly directed to do so. One of the reasons is that a contrary holding "could easily create a conflict of interest" for a lawyer attempting to represent the interests of both the testator and the beneficiary (citing no authority).

Rawa v. Monsanto Co., 2019 WL 3916537 (8th Cir. Aug. 20, 2019). This class action claims Monsanto mislabeled its herbicide, Roundup. A federal court in California transferred another similar action to this court. The trial court (E.D. Mo.) certified the class and approved a settlement. An objector claimed the class counsel had a conflict, but this opinion does not describe the nature of the alleged conflict. Class counsel had earlier obtained an expert opinion that the transfer and consolidation did not create a conflict for class counsel. The objector claimed that obtaining the opinion was an admission of guilt. In this opinion, affirming the trial court on all issues, the Eighth Circuit cited with approval the trial court's characterization of getting the opinion "as a sign of responsible behavior by class counsel," not an "admission that a conflict exists."

Wu v. O'Gara Coach Co. LLC, 2019 WL 3955761 (Cal. App. Aug. 22, 2019). In this case Thomas Wu sued O'Gara Coach ("O'Gara") for race discrimination and related wrongs. Wu worked for O'Gara from 2010 to 2016. Darren Richie was President of O'Gara from 2014 to 2016. After leaving O'Gara, Richie passed the California Bar and formed a law firm, Richie Litigation. Richie Litigation represents Wu in this case. O'Gara moved to disqualify Richie Litigation. In this opinion, distinguishing O'Gara Coach Co., LLC v. Ra, 30 Cal. App. 5th 1115 (2019), the court denied the motion to disqualify. Ra involved a similar claim. Richie, while at O'Gara, had worked on Ra's situation. The court in Ra found that Richie possessed privileged information of O'Gara relating to Ra. In the case of Wu, Richie had no involvement and, thus, no privileged information. However, Wu was impacted by the work Richie had done at O'Gara on employment practices. Nevertheless, analyzing the "playbook" approach, the court found that Richie's role was not specific enough as to Wu to be disqualifying. Shortly after deciding Wu, the appellate court in Loera v. O'Gara Coach Co., LLC, 2019 WL 4014086 (Cal. App. Unpub. Aug. 26, 2019) also reversed an order of disqualification because Darren Richie had no confidential O'Gara information relating to the employment of the plaintiff, Jorge Loera. Loera is alleging wrongful termination and related causes of action.

Essmaker v. Smith Food & Drug Centers, 2020 WL 184515 (D. Ida. Jan. 13, 2020). Sexual harassment and wrongful termination case. The court entered a sanctions order against the defendant's lawyer, not the defendant. The parties settled the case, and the defendant's lawyer moved to vacate the sanction. In this opinion the court disagreed, holding, in part, that such a result would create a conflict of interest for the lawyer, in that the lawyer might seek an unfavorable settlement for the client just to get rid of the sanction.

Cokinos, Bosien & Young v. Moore, 2020 WL 549066 (Tex. App. Feb. 4, 2020). Ruhrpumpen, Inc. ("Co. R") wanted to sue Flowserve Corp. ("Co. F") for violating a settlement agreement, which arose out of patent litigation. In July 2010 Eugene Moore, general counsel of Co. R, hired the Cokinos firm under a contingent fee agreement. In January 2011 Moore asked that the Cokinos firm give Moore 20% of any fee it earned. In March 2011, in an email, the Cokinos firm agreed to Moore's proposal, subject to a letter agreement. The letter agreement was never prepared. The R v. F lawsuit settled for $41 million, and the Cokinos firm received its contingent fee of about $8 million. In the meantime, Moore had passed away, and the executor of his estate brought this action to collect Moore's 20%. The executor won in the trial court. In this opinion the appellate court reversed, holding that the executor get nothing. No one at Co. R, other than Moore, knew of the fee sharing agreement. Essentially, the court held that there was no way Co. R could protect itself from Moore's conflict of interest. The opinion discusses Texas Rule 1.04(f) & (g), an expanded version of MR 1.5(e). Both versions require that the client agree to a fee sharing agreement; R's senior management vehemently deny they would have agreed to it.

In re Carlson, No. BK-S-19-16289-ABL (W.D. Mich. April 21, 2020). Discovery dispute in this Chapter 7 bankruptcy case. One issue was whether party a could claim attorney-client privilege when that party's lawyer had a conflict of interest. In this opinion the bankruptcy judge said that even if the lawyer was in a conflict, the client might still reasonably believe he or she could communicate with the lawyer in confidence.

Engine Distribs, Inc. v. Archer & Greiner, PC, No. A-4307-18T4 (N.J. App. Div. July 1, 2020). Archer & Greiner, PC ("Archer"), represented EDI as a defendant in a discrimination case (Case 1). During Case 1 Archer learned a great deal about EDI's finances, etc. Later, Law Firm represented Lisa Cummins in a divorce case against Glenn Cummins, principal of EDI (Case 2). The judge in Case 2 found that EDI was Glenn's "alter ego," and should be a party in Case 2. Four years after Case 2 began, EDI moved to disqualify Archer. The Family Part judge denied the motion, essentially holding that Glenn's delay in raising the conflict constituted "consent" to the conflict. While Case 2 was pending, EDI sued Archer for malpractice for violating N.J. Rules 1.9 and 1.10 (Case 3, or This Case). The trial court in This Case granted Archer summary judgment, holding that the Family Part judge's ruling in Case 2 constituted collateral estoppel on the conflict issues. In this opinion the appellate court reversed and remanded because the Family Part judge in Case 2 never reached the 1.9/1/10-conflict issues, but only ruled that delay equalled consent. Thus, no collateral estoppel.

Rule 1.11. Berkeley County Sch. Dist. v. Hub Int'l Ltd., No. 1:18-cv-00151-DCN (D.S.C. Aug. 13, 2020). CFO of School District ("District") allegedly embezzled District's money. CFO was indicted by a state grand jury. District's outside lawyer ("Lawyer") was given access to prosecution evidence "to aid in the State's investigation." District, represented by Lawyer, brought this damages case against CFO and various insurance entities, alleging that the defendants conspired in the embezzlement. The insurance entities moved to disqualify Lawyer in this case because of Lawyer's access to the grand jury material. In this opinion the court denied the motion. The only aspect of this opinion that is clear to us is the court's holding that S.C. Rule 1.11 does not apply to Lawyer because Lawyer has "never been a 'public officer or employee'" within the meaning of Rule 1.11. The rest of the opinion makes no sense to us. For cases and authorities on disqualification (or not) of lawyers possessing confidential information of non-clients, go to "Possessing Confidences of Non-Clients," at "Current Client" at this site.

Fipps v. Fipps, No. 2190628 (Ala. Civ. App. Aug. 7, 2020). H and W divorced in 2015. Lawyer represented H during that proceeding. W moved to disqualify Lawyer because Lawyer had, in 2003, represented W in a divorce case involving another spouse. That motion was granted. Now, Lawyer has, on behalf of H, filed a petition dealing with child support issues. W again moved to disqualify Lawyer. The trial court granted the motion. In this opinion the the appellate court denied H's petition for mandamus under the "law of the case" doctrine. Given the court's almost exclusive reliance on Alabama court decisions, it is not clear what impact the decision would have elsewhere.

Rengel v. Yeager, No. E-19-050 (Ohio App. Aug. 21, 2020). This is a suit by Lawyer for unpaid fees. One of Client's defenses was that a fee dispute constitutes an impermissible conflict of interest for Lawyer. In this opinion the appellate court rejected that contention, saying, if it were true, "a conflict exists in every attorney/client relationship."

Griffin v. Griffin, 2020 BCSC 1249 (CanLII) (S. Ct. B.C. Aug. 25, 2020). This is an action by W for divorce and for relief relating to the division of family property. Defendants include H, H's brother, and H's parents. Several issues relate to a company owned by Defendants ("Canoe Co.") Defendants have moved to disqualify H's law firm ("Law Firm"). The analysis by this trial judge is highly fact-specific and, in our view, of little precedential value. A few highlights: Law Firm serves as Canoe Co.'s registered and records office. That does not "offend the bright line rule." An earlier matter Law Firm handled for Defendants is not sufficiently related to this case. Merely gaining knowledge of Defendants' "corporate circumstances and litigation style" is not disqualifying. The court discussed the duty of loyalty to former clients, saying that it applies "in very limited circumstance," not present in this case. The court also found that Law Firm effectively complied with B.C.'s screening rule.

Charging Lien Invalid. Schreiber v. Friedman, No. 15-CV-6861 (CBA) (JO) (E.D.N.Y. Sept. 16, 2020). During the resolution of a business dispute, Law Firm and Client started arguing about how much Law Firm should be paid by Client. The disagreement ultimately caused Law Firm to assert a charging lien against the settlement proceeds. Client moved the court to vacate the charging lien. In this opinion the court did so because Law Firm had a conflict of interest. Not only did Law Firm repeatedly threaten to sabotage the settlement, it even sued Client while representing Client, without Client's consent. Thus, Client fired Law Firm "for cause." The court having found "cause," it ruled the charging lien invalid.

Fee Paid by Third Party. Neb. Op. 20-02 (undated). Trustee of Trust is using Trust funds to sue Third Parties. Beneficiaries of Trust are unhappy with that litigation and seek removal of Trustee. They cannot afford the legal expenses of the removal effort, so Third Parties (the ones being sued by Trustee) agree to contribute to the removal effort, including paying the legal fees of Lawyer representing Beneficiaries. In this opinion the committee holds that Lawyer for Beneficiaries may ethically proceed on this basis. The opinion discusses a number of ethics rules implicated, the most important being Nebraska's version of MR 1.8(f). The key points are that Lawyer must obtain informed consent from Beneficiaries, Lawyer must act in the best interests of Beneficiaries, independent of the wishes of Third Parties, and Lawyer must not reveal Beneficiary information to Third Parties, among others.

Former Judge. N.Y. Op. 1209 (Dec. 1, 2020). While an appellate judge, Lawyer issued an order on the scope of an easement. Now there is a dispute over enforcement of that very easement. In this opinion, construing New York's Rule 1.12, the committee held that lawyer may not handle the dispute for one of the parties, but that, with screening, his current law firm could handle the dispute.

Aaron W. v. Family Court Judge, 2021 WL 940844 (W. Va. March 12, 2021). In this divorce case, pending in Family Court, W moved to disqualify H's lawyer ("Lawyer") because Lawyer had earlier represented W in a PI case. H filed a petition for writ of prohibition in Circuit Court claiming Family Court had no authority to hear motions to disqualify. Circuit Court denied the writ. In this opinion, affirming Circuit Court, the Supreme Court of Appeals held that under West Virginia's statutory and regularity framework Family Court did have such authority. No court yet has ruled on the merits of W's motion to disqualify.

Syndicate Financing. Wis. Memo. Op. EM-19-02 (Feb. 2, 2021). Bank #1 hires Law Firm to document a loan. The deal will involve a number of yet-unidentified additional lenders. As the deal progresses, Banks 2, 3, and 4 agree to participate. Law Firm is representing Bank 2 on other matters. Bank 2 may, or may not, wish to negotiate special terms for this deal. Under what circumstances may Law Firm participate in such a negotiation for Bank 1? That is one of several scenarios discussed by this opinion. When is this a conflict? What if anything can be done about it? (advance consent, concurrent consent, withdrawal, etc.) Your situation may not fit any of the scenarios neatly, but the opinion provides a list of issues likely to arise. A companion pair of opinions considers a law firm's malpractice liability to the other lenders in a syndicated loan. Are they clients with privity? The cases are Leonard v. Dorsey & Whitney LLP, 553 F.3d 609 (2009), and McIntosh County Bank v. Dorsey & Whitney, LLP, 745 N.W.2d 538 (2008). Context for all this is in the article cited by the Wisconsin opinion, Reade H. Ryan, Jr., The Role of Lead Counsel in Syndicated Lending Transactions, 64 Bus. Law. 783 (May, 2009).

Ohio Op. 2021-02 (April 9, 2021).  A lawyer in a contingent fee case is advancing costs and expenses in conformance with ethics rules. In this opinion the Board says that a lawyer may ethically borrow money for that purpose from a financial institution.

Trustee Hiring Own Law Firm. Feinstein v. Freedman, 2021 ONSC 1493 (CanLII) (Ont. Super. Ct. April 12, 2021). Lawyer is acting as trustee of a family trust. This case involves Lawyer's compensation as trustee. One objection to his compensation is that Lawyer had a conflict of interest in hiring his own law firm to do work for the trust. The trial judge approved Lawyer's compensation. In this opinion the Divisional Court affirmed, holding, among other things, that ordinarily, it is not a conflict for a trustee to hire his own law firm to do work for the trust.

Common Interest Agreements. Roberts v. Hewlett Packard Computing & Printing, Inc., 2021 WL 1985444 (E.D. Va. May 18, 2021). In this opinion the magistrate judge denied Defendants' Motion to Disqualify Plaintiff's law firm ("Law Firm"). The parties' relationships are complex and confusing, and we won't spend any time on them. Law Firm, in another case, has entered into a common interest agreement with another party in that case. Defendants claim that the agreement effectively makes the other party in that case Law Firm's client. That would arguably create a conflict of interest for Law Firm in this case. The magistrate judge in this case noted authorities holding that common interest agreements do not create lawyer-client relationships. Moreover, the agreement specifically says no lawyer-client relationship is created by the agreement. The court also said that, given the differences between this case and the other case, Law Firm would not have received any information from the common interest relationship that would be relevant to this case.

Khoury v. Niew, 2021 IL App (2d) 200388 (Ill. App. May 21, 2021). Husband and Wife were in the same law firm. Wife was the 100% owner of the firm. Wife, unbeknownst to Husband, stole $2.34 million of client money being held in the firm trust account. Clients sued Wife and Husband. The trial court granted summary judgment against Husband. In this opinion the appellate court reversed, granting summary judgment to Husband. Given Wife's misconduct, the case approaches slapstick. Among other things, the court noted that both Husband and Wife were disciplined earlier for taking out a marriage license while they each were married to someone else. One odd thing appeared in the appellate opinion; that is the court's assertion that not all lawyers in a firm owe all the firm's clients fiduciary duties. The court cited only a handful of Illinois authorities and a weird reference to the purpose of conflicts checking.

Echols v. Express Auto, Inc., 2021 WL 2099238 (6th Cir. May 25, 2021). Plaintiff accepted a $10,000 settlement in this Equal Credit Opportunity Act case. This appeal deals with the trial court's award, under the Act, of some $79,000 in lawyers' fees and costs. In this opinion the appellate court affirmed the award. The issue of interest here is whether the award should have included lawyers' fees for an unsuccessful attempt by Plaintiff to disqualify one of Defendant's lawyers. The court said yes because the motion was a "reasonable 'pursuit of the ultimate result.'"

St. Anselm Coll. Corp v. Bd. of Trs. of St. Anselm Coll., No. 2020-0172 (N.H. May 26, 2021)). Law Firm brought this suit against Board on behalf of Abbot. Board moved to disqualify Law Firm because Law Firm had previously represented Board in similar litigation. The trial court granted the motion. Law Firm appealed. In this "order" the N.H. Supreme Court "dismissed" the appeal because Law Firm did not "have standing to bring it." The trial court did not find Law Firm guilty of misconduct but only that Law Firm may have relevant confidential information of the Board from the earlier representations. Thus, Law Firm has not "suffered a legal injury" giving it standing to appeal.

Cantu Servs., Inc. v. Worley, No. CIV-12-129-R (W.D. Okla. June 7, 2021). Discovery dispute. In this opinion the court found that parties being represented jointly by one lawyer enjoy a common interest privilege even after the parties interests diverge. The fact that the lawyer should have recognized the conflict, but kept going, does not remove the privilege. The court then found that the discovering party had made a prima facie showing of crime/fraud requiring that the court do an in camera inspection of the disputed material. The court's lengthy analyses of both common interest and crime/fraud appear to be good research tools.

Deutsche Bank Trust Co. Ams. v. Gillis, No. 2:19-cv-642-JLB-MRM (M.D. Fla. June 30, 2021). Lawyer formerly worked at Law Firm. Lawyer became a law clerk to the judge in this case. Law Firm represents Plaintiff. Defendant moved to disqualify the judge. In this opinion the judge denied the motion. The judge was satisfied that Lawyer was subject to a screen and has had nothing to do with this case. The court also noted earlier authority that, in any case, it is the clerk, not the judge, should be disqualified.

Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, Rail & Transp. Workers v. Fed. R.R. Admin., 2021 WL 3700447 (D.C. Cir. Aug. 20, 2021). Unions are challenging a regulation issued by F.R.A. The regulation provides that accident information developed by F.R.A. be withheld from discovery in accident cases. One of the bases for the challenge was that the regulation was based upon a study by a biased contractor (Law Firm). In this opinion the court upheld the regulation, including a finding that Law Firm did not have a conflict of interest. Law Firm did represent a railroad a hundred years ago. It was involved in one litigation from an accident that occurred after Law Firm's study was completed, and it did counsel a railroad on environmental issues, not rail safety.

Amjadi v. Brown, 2021 WL 3855831 (Cal. App. Aug. 30, 2021). Auto accident case. Plaintiff signed a retainer agreement authorizing Law Firm to enter into a settlement agreement that Law Firm believed to be "reasonable" and in Plaintiff's "best interest." Law Firm accepted an offer of $150,000, over Plaintiff's objection. The trial court ordered that the settlement was enforceable. In this opinion the appellate court reversed, finding, among other things, that the retainer agreement violated Cal. Rules 1.7(b) and 1.2(a), and that the settlement agreement was void. The appellate court also referred Law Firm's conduct to the State Bar for possible discipline.

United States v. Fisher, 2021 WL 4227019 (D. Nev. Sept. 16, 2021). Criminal prosecution. The Government moved to disqualify Defendant's "Appellate Counsel" ("Lawyer"). Lawyer had been employed as an AUSA from 2010 until 2018 on the Asset Forfeiture Team ("AFT"). Other AUSAs were handling the prosecution of Defendant during that period. Lawyer has no recollection of Defendant's case. Lawyer's only role would have been to assist the prosecution team in the limited function of giving advice on the forfeiture aspect of the case. Both Nevada Rule 1.11 and Criminal Code, 18 U.S.C. § 207 would disqualify Lawyer if he had participated "personally and substantially" in Defendant's case. Not so, here, given Lawyer's limited role on the AFT.

In re Judelson, No. 2018-3904/J (Surr. Ct. N.Y., N.Y. County, Sept. 17, 2021). This is a fight over the validity of a real estate contract. One of many attacks (all unsuccessful) was that the lawyer for one of the claimants had a conflict of interest when the contract was formed. That lawyer had represented several of the opposing parties in the past. The court was skeptical that there was a conflict, but said, nonetheless, that "the standard for contract avoidance on the basis of counsel's conflict requires both procedural and substantive unconscionability," citing Gendot Assoc., Inc. v. Kaufold, 115 AD3d 794 [2d Dept 2014]. No unconscionability here.

Weidel v. Weidel, 2021 WL 5365655 (N.J. App. Div. Nov. 18, 2021). Marital dispute, largely over ownership and control of business properties. At some point H presented W with an amendment to their pre-nuptial agreement. The amendment was drafted by Lawyer, who had represented W in estate planning and had represented H and W's business. Part of this lengthy and complex division of property exercise was a finding by the trial judge that the amendment was unenforceable because of Lawyer's conflict of interest. Thus, the trial court granted W summary judgment, finding the amendment unenforceable. In this opinion the appellate court affirmed, emphasizing that W did not have independent counsel regarding the amendment, and "there was no full financial disclosure." The amendment "bears the hallmarks of an unenforceable mid-marriage agreement."

Lawyer Paying Sanctions against Parties (posted December 20, 2021) Pletcher v. Giant Eagle Inc., 2021 WL 5979245 (W.D. Pa. Dec. 15, 2021). Earlier, the judge had ordered sanctions against two plaintiffs "for proven discovery violations." Someone raised the issue of whether those plaintiffs' lawyers could advance those sanctions on behalf of those plaintiffs. In this opinion the court ruled the lawyers could not advance the sanctions, and that the plaintiffs "shall personally pay" them by January 4, 2022. The discussion centered around Rule 1.8(e). The court characterized the issue as "unsettled." [Our note: Lawyers advancing funds on behalf of clients in litigation is not an area we are comfortable with. Perhaps the above is enough information to jump-start someone with such an issue.]

Receiver Hiring Own Firm. CCUR Aviation Fin., LLC v. S. Aviation, Inc., 2021 WL 6111683 (S.D. Fla. Dec. 27, 2021). This opinion deals with a temporary receiver's application for fees and expenses. One objection was that the receiver hired her own  law firm to represent her, thus creating a conflict of interest. The court rejected that objection saying that the practice of receivers' hiring their own law firms is  "common" in the S.D. Fla. Plus, in Footnote 4 the court noted that the receiver agreed to a cap on the law firm's hourly rates, and that the rates were "reasonable."

Another Receiver Case. Earthgrains Baking Cos., Inc. v. Sycamore, 2022 WL 433486 (10th Cir. Feb. 14, 2022). Plaintiff is attempting to collect money from defendant. The court appointed a receiver. The receiver opined as to the money owed and sought permission to liquidate some of Defendant's real estate to facilitate payment. The trial court adopted the receiver's recommendations. Defendant objected on several grounds. The ground relevant to this audience is that the receiver had a conflict of interest in giving legal advice to Plaintiff's lawyers. In this opinion the appellate court rejected that claim. It ruled that the trial court did not abuse its discretion in finding that the receiver had not acted as Plaintiff's lawyer and that all contacts with Plaintiff's lawyers were routine and "to be expected."

Migratory Law Clerk. Valdez v. Motyka, 2021 WL 6197286 (D. Col. Dec. 30, 2021). Law Clerk moved to Law Firm. In this opinion the court ruled that the court need not recuse. Filings reflected that the clerk stopped all work on this case after receiving her offer from Law Firm, and that Law Firm had erected an effective screen between the former clerk and this case.

Special Master. In re Twp. of Bordentown, 2022 WL 759754 (N.J. App. Div. March 14, 2022). This is a proceeding over whether Township complied with fair housing regulations. Among other things, Intervenor objected to the participation of Lawyer as a court-appointed special master, "because she, and others in her firm, were simultaneously representing dozens of municipalities in affordable housing settlement negotiations." The trial court rejected that objection. In this opinion the appellate court affirmed. Intervenor did not show that Lawyer had a financial interest or a link to a party in the case. Moreover, the court said a special master merely makes recommendations and, for conflicts purposes, should be treated like a judge.

Rule 1.12; Former Mediator.  Escobar v. Mazie, No. A-3761-20 (N.J. App. Div. April 25, 2022). Legal malpractice case. Law Firm had represented Plaintiff in a case arising out of serious injuries to an infant. Plaintiff ultimately lost the case and is blaming her law firm, the Mazie Law Firm. Plaintiff moved to disqualify the law firm ("Wilentz Firm") defending the the Mazie Firm in this case. The Wilentz Firm had entered this case in January 2021. The problem is that, in February 2021, "Mediator," who had presided in two mediation sessions during the injury case, joined the Wilentz Firm.  Prior to joining Wilentz, Mediator had filed, in this case, a declaration about the issues in the mediation. Evidently, Mediator may also be a courtroom witness in this case. Carefully parsing New Jersey's Rule 1.12, this court agreed with the trial court that the Wilentz Firm can continue in the case. Both courts found the Wilentz firm's screening of Mediator to be adequate under the rule. As to whether Mediator could testify during depositions or the trial of this case, the court suggested that the Wilentz firm might rely on the Mazie firm to handle that part of the case.

Contract Unconscionable. Simon v. Smith, No. 18-FM-1333 (D.C. App. April 22, 2022). Divorce. Control of property. W and H separated in 2016 after ten years of marriage. W sued for divorce in 2017. At issue here is ownership and control of a condominium, which W had owned outright before the marriage. During their marriage H had his longtime lawyer ("Lawyer") prepare documents providing for transfer of certain rights to the condo from W to H. Lawyer purported to be W's lawyer when the documents were signed. Given, in substantial part, Lawyer's longtime relationship to H, and Lawyer's conflict, the trial court ruled the condo documents unconscionable -- "one-sided and oppressive" -- and ordered that W resume full ownership and control of the condo. In this opinion the appellate court affirmed the trial court. The opinion contains much more about the doctrine of unconscionability and trust law. The purpose of this piece is to illustrate how a lawyer's seeming over-the-top conflict can invalidate contract rights.

Information from Non-Client. Margetak v. Hughes, 2022 ABPC 91 (CanLII) (Prov. Ct. Alb. April 6, 2022). Marital dispute. H moved to disqualify one of W's lawyers ("Lawyer") because Lawyer had represented an earlier wife of H against H in a marital dispute. H is claiming that Lawyer retains H's confidences from the earlier dispute. In this very fact-specific opinion the court held that the paucity of the record prevents the court from concluding that H retains information from the earlier case that is sufficiently related to this case. Moreover, H waited two years to raise the issue, a delay "beyond reasonable contemplation."

Information from Non-Cliet. Talon Int'l Inc. v. Min, 2022 ONSC 1791 (CanLII) (Super. Ct. Ont. March 21, 2022). Plaintiff owns a hotel, which sells condominium units to individual investors. One of those investors is Defendant. Plaintiff is suing Defendant for damages. Plaintiff moved to disqualify Defendant's lawyer ("Lawyer") because Lawyer had represented numerous other hotel unit investors in disputes with Plaintiff. Plaintiff claims Lawyer would have received Plaintiff's confidences during discovery and resolution of the other investors' cases. In this opinion the court granted the motion to disqualify, finding that litigation provided Lawyer "with a high level of exposure" and that "there is a real risk of even inadvertently misusing the confidential information he possesses."

Tchorzewski v. Musick, 2022 WL 2135376 (D. Md. June 13, 2022). Plaintiff lent $100,000 to Defendant to enable Defendant to purchase real estate. The purchase failed, and Defendant failed to repay the loan as agreed. In this case Plaintiff sued Defendant and Defendant's law firm. The court could find no specific basis for a claim by Plaintiff against the law firm. In this opinion the court granted the law firm's motion to dismiss, saying "[to] avoid conflicts of interest, Maryland courts have been reluctant to find ... a duty running from one party's attorney to the other party in real estate transactions."

Pala Asset Holdings Ltd. v. Rolta, LLC, 2022 WL 2251346 (N.Y. App. Div. 1st Dept. June 23, 2022). The trial court entered a substantial judgement against Defendant. When Defendant did not comply with the court's turnover order, the court appointed a receiver, granting the receiver broad powers to comply with the turnover order. Defendant's law firm moved to withdraw, claiming that it had a conflict between the receiver and Defendant. The trial court denied the motion. In this opinion the appellate court affirmed, holding there is no conflict because Law Firm does not represent the receiver.

Pace-O-Matic, Inc. v. Eckert Seamans Cherin & Mellott, LLC, 2022 WL 2441556 (M.D. Pa. July 5, 2022). Pace-O-Matic ("POM") is suing Eckert for breach of fiduciary duty, including for compensatory and punitive damages. Eckert was representing POM in Virginia litigation. At the same time POM was in Pennsylvania litigation, evidently represented by a firm other than Eckert. In the Pennsylvania litigation POM was seeking an injunction preventing the Pennsylvania State Police from enforcing certain laws against POM. Another company, Parx, was resisting POM's efforts in Pennsylvania, first as an amicus, and ultimately as an intervening party. Eckert was assisting the other law firm representing Parx. When POM discovered that Eckert was assisting Parx, adverse to POM in Pennsylvania, POM asked Eckert to stop assisting Parx. Eckert's response was to drop POM as a client in the Virginia matter. In this case POM, in discovery, is seeking all communications between Eckert and Parx (including Parx' other counsel). Eckert is resisting production of these communications, on attorney-client privilege and work product grounds. In this opinion the magistrate judge, after an in-camera inspection of the communications, ruled that they must be produced, Pace-O-Matic, Inc. v. Eckert Seamans Cherin & Mellott, LLC, No. 1:20-cv-00292 (M.D. Pa. Nov. 16, 2021). The basis was that Eckert is judicially estopped from claiming privilege and work product protection, because it is claiming, for conflict-of-interest purposes, that it was not representing Parx in the Pennsylvania litigation. From the in-camera inspection the magistrate judge concluded that Eckert's assistance to Parx, and Parx' other counsel, in the Pennsylvania litigation was too substantial for Eckert to claim it was not representing Parx against POM. The court even said Eckert was doing this "clandestinely." Thus, in the judge's words, Eckert was playing "fast and loose with the courts," requiring judicial estoppel. In this opinion the district judge held that the magistrate judge did not abuse his discretion in applying judicial estoppel and affirmed the magistrate judge's decision.

Doe 1 v. Madison Metro. School Dist., 2022 WL 2550014 (Wis. July 8, 2022). This litigation is about the duties of school personnel to communicate (or not) to parents regarding pupils' trans-gender status. The parent/plaintiffs wish to have their names withheld from lawyers for the district/defendant. (Wisconsin rules already allow courts to keep that information from the public and the district/defendant.) In this opinion the court ruled that the district's lawyers should get the parents' identities. One factor of "no minor importance" is the ability of the district's lawyers to identify possible conflicts with the parents. The court stressed that it is the duty of lawyers, more so than that of clients, to police compliance with the conflict rules.

Tabrizi v. Nitto, Inc., 2022 WL 16552859 (D.N.J. Oct. 31, 2022). Law Firm represents Plaintiff, Tabrizi, in this employment discrimination case against Nitto. Law Firm previously represented another plaintiff, Panzner, in a different discrimination case against Nitto, in state court. Nitto moved to disqualify Law Firm in this case. In this opinion the court denied Nitro's motion to disqualify. The problem for Nitto is that it had made an "identical" motion to disqualify Law Firm in the state case, and that motion was denied. Thus, collateral estoppel precludes granting the motion in this case. Both motions involved the relative roles that Panzner and Tabrizi played in their cases. The state court judge had found that Nitto failed to show that Tabrizi knew anything about Panzner's case or that Tabrizi was, in any way, responsible for Panzner's termination. Thus, the judge here ruled she was bound by that result. Lots of reasoning about the application of collateral estoppel to motions to disqualify.

Joseph v. Rassi, No. 510914/2016 (N.Y. Sup. Ct. Dec. 7, 2022). Caution: This opinion is not clear as to who owns what and who did what to whom. The case is a claim for breach of fiduciary duty and related causes of action. Plaintiff moved to disqualify an in-house lawyer ("Lawyer") for a number of defendant entities because those entities' interests are not aligned. In this opinion the court denied the motion primarily because Lawyer is not of record in this case. The court said Lawyer could "consult with actual trial counsel." Plus, "all parties concede" Lawyer may be called as a witness. No discussion of standing.

Subrogation. Interstate Indem. Co. v. East 77 Owners Co., LLC, No. 650794/2022 (N.Y. Sup. Ct. Jan. 6, 2023). Interstate insured Owner for property damage. As the result of a loss, Interstate, as Owner's subrogee, sued others alleged to be responsible for the loss ("the underlying case"). The underlying case was settled. A dispute arose between Interstate and Owner as to who gets what share of the settlement proceeds. In this case Interstate is suing Owner for what Interstate believes Owner owes Interstate. Owner moved, in this case, to disqualify Law Firm from representing Interstate because, in the underlying case, Law Firm represented Interstate as Owner's subrogee. In denying the motion to disqualify the court held that a lawyer's representing the subrogee does not make that lawyer a lawyer for the subrogor.

Malpractice Insurance. Brown Goldstein Levy LLP v. Federal Ins. Co., 2023 WL 3513693 (4th Cir. May 18, 2023). The Government was investigating Law Firm's client. The Government informed Law Firm that because Law Firm was also a subject of investigation, Law Firm had a conflict of interest. Two things followed: First the Government executed a search warrant of Law Firm's offices. Second, the Government requested that Law Firm obtain a formal conflict waiver from its client. Law Firm incurred costs in responding to the search warrant and the subsequent letter requesting a waiver. Law Firm demanded coverage and reimbursement from Defendant, its malpractice carrier. Defendant declined. Law Firm filed this case against Defendant seeking coverage. The trial court, interpreting the malpractice policy and applying Maryland law, denied the claim. In this opinion the appellate court affirmed. The policy provided coverage for monetary or similar claims, and the court found that the Government's actions were neither.

In re Guardianship J.W., No. 21-0348 (Ia. May 26, 2023). Lawyer filed a proceeding to make himself guardian of Minor over the objections of Minor's mother ("Mother"). Lawyer had previously represented Mother, including on custody matters. The trial court dismissed the proceeding because, in part, Lawyer had a conflict of interest. The appellate court reversed, saying that dismissal was not an appropriate remedy for an ethics violation. In this opinion the Iowa Supreme Court affirmed the trial court and ruled the action should be dismissed. First, the court ruled that dismissal could be a remedy. Second, the court ruled that Iowa Rule 1.9 would apply even though Lawyer was representing himself. Last, the court held that this proceeding was substantially related to Lawyer's earlier work for Mother. [Our note: This is a long opinion containing detailed reasoning. One interesting aspect is the court's analysis of decisions from other jurisdictions, the Restatement, and the ABA's Annotated Model Rules.]

MMR Constructors, Inc. v. JB Group of LA, LLC, 2023 WL 3874008 (M.D. La. June 7, 2023). Plaintiff is suing Defendant for stealing Plaintiff's trade secrets and related wrongs. Plaintiff noticed the deposition of a former Plaintiff employee (non-party) who became an IT worker at Defendant. Defendant's law firm showed up at the deposition as counsel for both Defendant and the witness. Early during the deposition the witness said he was not using Plaintiff's data. Later in the deposition the witness said he was using Plaintiff's data, but that others at Defendant did not know it. Defendant's lawyer announced he had a conflict of interest based on the contradiction and terminated the deposition. The issue in this opinion was whether Defendant or its law firm should pay sanctions for terminating the deposition. The court ruled they should. The court said that Defendant's law firm may well have been required ethically to drop the employee as a client, but that the law firm should have anticipated that possibility when it agreed to represent both Defendant and the employee.

In re Almanzar Foreclosure, 2023 WL 4073007 (N.C. App. June 20, 2023). Foreclosure proceeding. The substitute trustee under the deed in trust is a partner in the law firm that handled the underlying lending transaction in 2006. The trial court ordered foreclosure. Borrower appealed. One ground of appeal is that the substitute trustee was not "neutral." In this opinion the appellate court ruled that the trustee could act as long as his firm is not involved in the foreclosure, even though his firm handled the underlying transaction.

Escrow Agent. Boozer v. Fischer, No. 22-0050 (Tex. June 30, 2023). This opinion is a mini-treatise on escrow agreements. We will focus on the one conflicts-related issue: Whether a lawyer for one party may act as an escrow agent for both parties. Party A put $1 million in escrow for later payment to Party B if Party B prevailed in court. A's lawyer ("Lawyer") was the escrow agent. Lawyer stole the money. In this opinion the court ruled that the risk of loss fell on Party A. In the course of the opinion the court ruled that one party's lawyer can be the agent in an enforceable escrow arrangement, provided, in part, that the agent's interests do not conflict with those of the principal (in this case, Party A).

Medtronic, Inc. v. Becton, Dickinson & Co., 2023 WL 4370686 (D. Kan. July 6, 2023). Medtronic made a motion to compel Becton to produce certain materials. Becton defended the motion to compel, in part, by claiming Medtronic's lawyers had a Rule 1.7 conflict of interest. In this opinion the magistrate judge rejected that defense, saying Becton could have  made a motion to disqualify those lawyers. Because Becton did not, the court said it was "unnecessary" to resolve the conflict issue. The court went on to grant in part, and deny in part, Medtronic's motion to compel on other bases.

Intervention re Conflict. Jonna v. Bitcoin Latinum, No. 23-1441 (6th Cir. Aug. 9, 2023). Securities fraud case. Law Firm represents Plaintiffs. Non-Party seeks to intervene to move to disqualify Law Firm because Law Firm represents Non-Party in other, arguably related, matters. The trial court denied the motion to intervene. In this opinion the appellate court granted Non-Party's motion to stay this case pending resolution of the motion to disqualify. There was a strong dissent. The majority held that a motion to intervene for disqualification purposes was appropriate and that the matter satisfied "Article III jurisdiction." Importantly, the majority said that Law Firm "likely has a disqualifiable conflict of interest." The dissenter would deny the stay. Among other things, the dissenter pointed out that Law Firm's client in this case is not accusing Non-Party of wrongdoing and that, in any event, Non-Party would have other ways of dealing with Law Firm (e.g. a malpractice claim). Given all the above, we are not clear what Non-Party is claiming could happen to it in this case because of Law Firm's involvement. But, the opinion is a pretty good review of authorities on intervention for conflict-of-interest purposes.

Rule 1.11. Broidy v. Global Risk Advisors LLC, No. 1:19-cv-11861-MKV (S.D.N.Y. Nov. 15, 2023). Elliott Broidy and his firm are suing Defendants for hacking Plaintiffs' systems. Gibson Dunn originally represented Defendants in this case. The problem was that one of the Gibson Dunn partners ("Lawyer") had earlier been a lawyer on the Robert Mueller team investigating Trump and Russia. Broidy's name came up during the investigation, and the Mueller team spent some time looking into Broidy. Because of Lawyer's work on the Mueller team and the possibility that Lawyer learned Broidy's confidences while on the team, Plaintiffs moved, under Rule 1.ll, to disqualify Gibson Dunn. Rather than contest the motion, Defendants terminated Gibson Dunn and hired another firm. Although that substitution of counsel mooted the motion to disqualify, Defendants brought this proceeding for sanctions against Gibson Dunn. In this opinion the court denied the request for sanctions. The two main issues were whether Lawyer's role on the Mueller team exposed her to Broidy's confidences, and whether any such confidences would have been relevant to this hacking case. Lawyer and Gibson Dunn denied both claims. The opinion mentions Rule 1.11's screening requirement, and it is not clear from the opinion when, if ever, Gibson Dunn screened Lawyer. In any event, the court felt that Gibson Dunn's conduct, or lack thereof, regarding Lawyer and Broidy did not involve the kind of bad faith justifying sanctions.

Nimitz Techs. LLC v. CNET Media, Inc., 2023 WL 8187441 (D. Del. Nov. 27, 2023). This is about "patent troll" litigation in one of the busiest patent litigation venues, the District of Delaware. In this opinion the Chief Judge has referred several plaintiffs' lawyers to various state and federal disciplinary agencies regarding their roles in cases brought by trolls. The principal area of concern is the failure of plaintiffs to identify whose interests are really at stake. As a result, one unidentified company, with the most at stake, is calling all the legal shots while the party holding the patent, with a nominal stake, has risks that could be substantial. The lawyer is being paid by the party calling the shots, but is the lawyer of record for the named party (the client). One of the court's concerns is the lawyer's failure to identify those risks for the named client, along with the lawyer's desire to satisfy the party calling the shots and paying the lawyer. Thus, we see possible violations of Rules 1.4 and 1.7, among others. [Our note: We do not know enough about patent litigation to know whether the court is onto something. So, stay tuned. We do not mean "patent trolls" in a pejorative sense, but as shorthand for who is doing what to whom.]

Superb Motors Inc. v. Deo, No. 23-CV-6188 (JMW) (E.D.N.Y. Dec. 1, 2023). This site does not usually consider application of Rule 3.7 (Lawyer as Witness). However, because the lawyer in question is also a party, this case provides an interesting twist. Normally, Rule 3.7 does not prevent a lawyer/witness from representing parties during pre-trial activities. Here, however, the lawyer in question is a party along with his clients. Thus, in this opinion, the magistrate judge disqualified the lawyer under Rule 3.7, even at this "nascent stage," from representing his co-party clients.  The court allowed the lawyer to continue representing himself.

Rule 1.11. Infinium Builders LLC v. Metro. Gov't of Nashville & Davidson County, No. 3:23-cv-00924 (M.D. Tenn. Nov. 17, 2023). Gov't enacted a "sidewalk ordinance" requiring developer to provide sidewalks or other protections for pedestrians. That ordinance was declared unconstitutional by the Sixth Circuit. In this case a class of developers who complied with the sidewalk ordinance are seeking reimbursement for all costs and expenses of that compliance. Several lawyers who were employed by Gov't when the constitutionality of the sidewalk ordinance was litigated are now with the law firm representing the plaintiffs. Gov't moved to disqualify Plaintiffs law firm under Rule 1.11. In this opinion the court denied the motion, holding that the constitutionality of the ordinance is not the same "matter" as the current suit to recover costs and expenses. The court did not need to consider whether the former Gov't lawyers' roles in the Sixth Circuit litigation was "personal or substantial" or whether any screening was required or adequate.

Rule 1.8(e) Ayala v. Tasty Baking Co., No. 2:22-cv-03849-WB (E.D. Pa. Jan. 10, 2024). Plaintiff was injured at work and claims that Defendant/Employer has discriminated against him under various federal employment laws. Defendant moved to disqualify Plaintiff's lawyer ("Lawyer") because Lawyer was supporting Plaintiff in violation of Rule 1.8(e). It was clear that Lawyer had paid for Plaintiff's lodging for some short period of time -- maybe two months or less. In this opinion the court denied the motion to disqualify, finding that disqualification "is not necessary to effectuate the purposes of the rule or protect the integrity of the legal process." However, the court did refer the matter to the court's disciplinary committee.

Nguyen v. 1108911 B.C. Ltd., 2024 BCCA 48 (CanLII) (Ct. App. B.C. Feb. 16, 2024). Mother, Daughter, and Daughter's business ("Nail Spa") leased space from Landlord. They had a dispute, and Landlord sued all three lessees. Landlord won at trial. On appeal Mother seeks a reversal claiming ineffective assistance of counsel, because her lawyer, representing all three lessees, had a conflict of interest. In this opinion the appellate court affirmed. The court acknowledged that in rare instances an ineffective assistance defense might succeed. However, unlike in criminal cases, in civil cases the defendants must show, among other things, the lawyer knew he was acting unlawfully or unethically. Mother failed to make that showing. The court did see elements of a conflict and noted that the lawyer could face malpractice liability or discipline.

Judicial Clerk; United States v. Pennick, No. 17-CR-15-RJA (W.D.N.Y. March 21, 2024). Defendant is about to be sentenced and has moved to disqualify the judge. The judge's law clerk, when in the U.S. Attorney's office, had some involvement with Defendant's earlier criminal case. In this opinion the court denied the motion, stressing that the clerk has had no involvement in this matter. The court noted cases that held, in these situations, it is the clerk, not the judge who is disqualified.

Rule 1.11. Taylor v. Arkansas, No. CR-23-630, 2024 Ark. 68 (April 25, 2024). Pulaski County is prosecuting Taylor for incest and rape. The Digby Firm is defending. About a year after these charges were brought, Lawyer Ivy joined the Digby Firm and began working on this case. The state moved to disqualify Ivy and the Digby Firm. The trial court granted the motion. In this opinion the Supreme Court affirmed. Ivy came from the Lonoke County prosecutor's office, where Ivy had contact with Taylor and the same victim, involving similar conduct. This opinion "checks all the boxes" under Rule 1.11. Construed broadly, the matters were the same. Further, the firm did not screen Ivy from this case, and, naturally, gave no notice of a screen required by Rule 1.11.

Contingent Fee Issues. Est. of McClain v. Kilmer, Lane & Newman, LLP, No. 23CA0379 (Col. App. Div. 2 May 9, 2024). In this opinion the court considered the extent to which, if any, a law firm is entitled to fees under a contingent fee agreement when the client has fired the law firm mid-stream. The problem here is that when the representation began, the law firm had an arguable conflict of interest. The analysis is highly fact-specific, and the facts are convoluted. The case is more about problematic fee arrangements and less about conflicts of interest, so we will leave it at that.

Guardians, etc. In re Est. of Morgan, 2024 WL 2509041 (Tex. App. May 24, 2024). Mother died in an auto accident. She left three minor children. Suits were filed on behalf of the children. A settlement was reached and approved by the trial court. In this opinion the appellate court, among other things, ruled the settlement agreement invalid. The facts and relationships are a mess, and to sort through them would take forever. The case is all about the roles of “guardians ad litem,” “attorneys ad litem,” and “best friends” under Texas law, including their roles in identifying conflicts. Texas lawyers with cases involving minors in tort litigation may find the opinion helpful. The rest of you won’t.

Suing Opposing LawyerDavid v. Betts, 2024 WL 2214613 (D. Hawii May 15, 2024). Plaintiff sues various parties arising, in part, out of Plaintiff's physical abuse by Plaintiff's husband, a defendant here. One of the defendants here is the husband's lawyer ("Lawyer"). In this order the court granted Lawyer summary judgment. The court emphasized that in Hawaii to allow negligence cases against the other side's lawyer "would create an unacceptable conflict of interest." The court further described how difficult it is to implicate the other side's lawyer in a RICO action.

Removal of Personal Representative. In re Est. of Eberhard, No. A176349 (Ore. App. May 30, 2024). For a time Lawyer represented Decedent, including drafting Decedent's will. Upon Decedent's death Lawyer became the personal representative ("PR") of Decedent's estate. In the trial court an heir moved to have Lawyer replaced as PR. The problem was that Lawyer drafted the operative will and, most likely, accidentally omitted an important provision. The trial court ordered Lawyer removed as PR. In this opinion the appellate court affirmed, finding that Lawyer had a conflict. Lawyer "was not in a position to objectively assess the strength of the estate's potential malpractice claim against" Lawyer.

Equine Luxury Props., LLC v. Commercial Capital BBIDCO, Inc., 2024 WL 2768514 (W.D. Mich. May 30, 2024). Defendant, a Tennessee citizen, had Plaintiff's mortgage, which is now in default. Plaintiff, a Michigan citizen, brought this suit in state court to prevent foreclosure. Plaintiff joined Defendant's law firm ("Law Firm") as a defendant. Defendant removed this case from state court to this court. Plaintiff moved to remand the case because the parties' citizenships were not diverse (Law Firm is a Michigan citizen). In this opinion the court denied remand because the joinder of Law Firm in this case was "fraudulent." Plaintiff has no claim against Law Firm because, in part, to allow a law suit against a party's opponent's law firm would create the potential for a conflict of interest.

Arnold v. Alvarado, Civil No. 22-3332: "E" (3) (E.D. La. June 11, 2024). Plaintiff brought this 1983 case because a deputy roughed her up during an "encounter." Plaintiff moved to disqualify Defendant's lawyer ("Lawyer") because Lawyer had earlier, as an ad hoc judge, presided at a criminal trial, in which Plaintiff pleaded guilty. In this opinion the court denied the motion to disqualify. First, the judge ruled that Rule 1.12 did not apply because the earlier case was not the same "matter" as this. The court ruled that Rule 3.3(d) did not apply because this case is not an ex parte proceeding. The court found no impropriety because Defendant has said it will not introduce anything from the prior criminal case. The court was also influenced by Plaintiff's four-month delay in raising the conflict.

This & That - Part I
This & That - Part III